We have recently seen layoffs in all areas of business which have left thousands scratching their heads as to why an employer would need to hire a foreign national while laying off some of their employees. The reality of the situation is that it an employer may require employee layoffs in one location, while needing additional employees in another business location. Many businesses have had to restructure their companies and cut their losses resulting in the shutdown of less productive operations or consolidations. Employers have to be ready to modify their spending in a downtrodden economy. There may be an increase in one segment of the business, with a downturn in another.

Any employer that has filed a PERM Labor Certification knows that the DOL specifically asks whether the employer has had a layoff in the area of intended employment in the occupation or in a related occupation within the six months immediately preceding the filing of the application. If this is the case, the employer is required to provide information and evidence demonstrating that U.S. workers were notified and considered for the job opportunity for which the labor certification is sought.

Before answering yes when your company has had recent layoffs, be sure to examine each part of the question to determine if it applies to you. If the answer is yes, then the employer is required to try to contact and consider certain potentially-qualified former employees for the job opening. Below is a list of questions designed to assist you in determining whether the above inquiry applies to your business:

• Has your company had any layoffs?
• Did these layoffs occur within the past six months?
• Were any of the employees laid-off U.S. Workers?
• Were the former employees working in the area of intended employment?
• Were the former employees working in the occupation set forth in the labor certification?
• Were the former employees working in an occupation related to that in the labor certification?

If the position or job opportunity does not fall into these categories, then an employer has a greater opportunity at receiving the labor certification. It is important to remember that the DOL is only concerned with protecting U.S. Workers. The layoff provision only applies to U.S. workers (i.e. U.S. citizens, lawful permanent residents, and individuals who do not require sponsorship to work in the U.S., such as refugees / asylees). If no U.S. workers have been terminated, then the employer need not worry about this portion of the question. Additionally, if an employer has not had any layoffs in the past six months, then there should be no rise for concern on the employer’s part as the DOL is only concerned with recent layoffs occurring throughout recruitment periods.

The last requirement of companies with recent layoffs is that former U.S. Workers included in any layoff must have worked in the area of intended employment, which is the geographic area where the offered position is to be performed (including normal commuting distance). If the labor certification is for work in a specific location (or locations), and the former employee lives within arguably normal commuting distance, then the response to the question must be yes. If the sponsored position does not have a set work location, but rather anticipates various worksites throughout the U.S., then yes must be the answer to the question, if there have been any layoffs of U.S. workers in related occupations within the six-month period.

If your company has had recent layoffs which fall under the above criteria, then you must be able to demonstrate genuine attempts to notify U.S. worker/s of the job opportunity and that the former employee/s were considered for the position. The DOL is firm in their regulations requiring employers to identify the terminated U.S. workers who previously held the same or related positions in the area of intended employment. The employer must determine whether any worker is potentially qualified for the position and must attempt to notify the worker/s of the opening.

Not only must an employer make these attempts to contact U.S. workers who were previously laid off, but they must also document the good-faith attempts to notify former employees. Any of the former employees who respond to the employer’s notification must be evaluated to determine if they are able, willing, and qualified to perform the sponsored job, under the standards applied to any other applicant. The employer does not have to contact former employees who are not potentially qualified based upon the requirements set forth in the labor certification.

DOL has issued statements affirming that due to the economic hardship the country is currently facing, they will have to carefully scrutinize this particular aspect of the PERM process.

The employer in Technivate received five referrals from a regional job center for the position of Heavy Equipment Operator, a job paying $21.89 an hour with no experience required. The employer left a phone message for one of the candidates, but the call was not returned. An e-mail was sent to a second candidate, but it was returned due to an inoperable e-mail address. The employer did not make any further efforts to reach either candidate, inferring that an applicant who does not even bother to return a call for a well-paying job with no experience required must not be interested in the position. The certifying officer took the position that, while an employer might be justified in making such assumptions in the course of a standard job recruitment, the efforts made in this case to reach the applicants were not sufficient for the purposes of obtaining a labor certification.

The Board agreed with the assessment of the certifying officer, finding that the employer had not made a good faith effort to contact the two candidates in question. “Clearly,” the Board found, “sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden.” While not deciding exactly what type of communication would have met the standard, the Board found that the employer’s efforts here were clearly insufficient, as the record contained no evidence of any attempted contact after the voicemail and e-mail went unreturned. The Board held that, on these facts, the employer had made only a “minimalist effort” at recruitment, and that the certifying officer’s denial of the labor certification should be upheld.

This case, while not decided under the current regulations, should serve as a cautionary tale for employers pursuing a labor certification. No matter what a company has done in the past to recruit candidates, one should never assume that such efforts will be sufficient for the purposes of labor certification. A recruitment plan must be created with the labor certification process in mind, and it must be strictly followed from start to finish in order to have any chance at ultimate success. Any candidate identified for the job opening must be seriously considered, and all efforts to reach such candidates must be well documented. By preparing—and scrupulously following—a comprehensive recruitment plan in conjunction with competent legal counsel, employers can avoid the fatal mistakes made by the employer in Technivate.