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Labor Certifications after Employee Layoffs
Posted
Jan 23, 2009
©MurthyDotCom
The purpose of the labor certification process is to protect U.S. workers.
It is a certification from the U.S. Department of Labor (DOL) that there are
no qualified, willing, or available U.S. workers for the offered employment
or position. The labor certification is the first step in most
employment-based permanent residence (green card) cases. It is important to
understand the issues and eligibility criteria for filing labor
certifications after the employer has had employee layoffs.
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Why Would an Employer Need a Foreign Worker if
There Have Been Layoffs?
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This is a good question, and it is essentially what the DOL is asking in
various formats. The answer lies in geography, occupations, skills, and
timing. In this climate, it is quite plausible for an employer to have employee
layoffs in one location, while needing additional employees in another
location. This happens when operations consolidate, or otherwise
restructure. The needs of the employer often shift as a business is
modified to adapt to changes, including the economy. There may be an
increase in one segment of the business, with a downturn in another. Timing
also plays a factor. The employer may have the need to lay people off, for
example, early in the year. Should there be an improvement in the economy,
however, or if the employer adapts and there is an increase in the demand
for the products and/or services it provides, then more employees may be
needed four to six months later.
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What Does the DOL Ask in the PERM Context?
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Questions about layoffs arise in the context of employee recruitment
efforts. The DOL asks the following question in the PERM labor certification
application (Form 9089).
"Has the employer
had a layoff in the area of intended employment in the occupation
involved in this application or in a related occupation within the six
months immediately preceding the filing of this application? If yes,
were the laid off U.S. workers notified and considered for the job
opportunity for which the [labor] certification is sought?"
Multiple-Part Question on the PERM Form
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The question asked by the DOL is a multipart question. Each element must be
analyzed to determine if the answer is YES. 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. As covered
below, in order to determine the appropriate response to the question posed
by the DOL, it is necessary for the employer to analyze the following.
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Have there been
layoffs?
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Did the layoffs
occur within the past six months?
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Were the former
employees U.S. workers?
-
Were the former
employees working in the area of intended employment?
-
Were the former
employees working in the occupation set out in the labor certification?
-
Were the former
employees working in a related occupation?
What is the Relevance of a Layoff in the PERM Context?
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Technically, a layoff is a temporary loss of job, but it is often used in
both the temporary- and permanent-loss-of-job contexts. The layoff provision
is designed to incorporate reductions in force and downsizing; however, it
can include an individual termination. Layoffs are defined as any
"involuntary separation of a worker
without
cause." Therefore, it does not extend to situations in which the
employer has terminated the worker for cause. It also only involves
involuntary terminations. If the only terminations were either voluntary or
for cause (such as poor work performance, etc), then the response to the
question may be NO. The PERM regulations have made the issue of layoffs
employer specific. The question does not consider industry layoffs.
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Who is a Protected U.S. Worker?
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The DOL is concerned with protecting U.S. workers. The layoff provision only
applies to
U.S. workers (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
answer to the DOL's question is no.
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Timeframe of Six Months Preceding Filing the
PERM
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The DOL is only concerned with layoffs that occurred within the six months
immediately prior to filing the Form 9089. Therefore, any layoffs that were
more than six months prior to the filing can be disregarded. Layoffs that
occur after the filing of a labor certification also do not change the
answer to the question.
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What is a Related Occupation for this Purpose?
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If there have been layoffs of U.S. workers within the six-month period prior
to filing the Form 9089, the employer must determine whether any former
employee was
working in the occupation on the labor certification or a related
occupation. A related occupation is defined as any position
that involves a majority of the essential duties of the sponsored position.
Thus, if there were layoffs of U.S. workers in unrelated positions, the
appropriate response to the question may be no. The issue of whether a
position is considered related or not will be clear in some situations, and
less so in others. It is important for employers to be careful when
answering this question, as all others on immigration-related documents,
since
most responses are under penalty of perjury. Employers should be prepared to
support any determination on this or any related matter, in the event of an
audit.
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Area of Intended Employment
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The final requirement is that laid-off former employees 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.
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Employer Obligations under PERM if the Answer is
"Yes" to Layoffs
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The employer 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, if the response to the question on layoffs was
yes. It is the employer's responsibility to identify the terminated U.S.
workers who previously held the same or related positions in the appropriate
geographic area. The employer must determine whether any worker potentially
is qualified for the position, and must attempt to notify the worker/s of
the opening.
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The employer must document the good-faith attempts to notify former
employees, as some may no longer be reachable. 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.
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DOL Acts as Watchdog
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The PERM process is an attestation-based process. So, to a certain degree,
it relies upon the honesty of the petitioning employer. However, lest any
employer be tempted to be less than forthright on any issue, it is important
to reiterate that, by filing the
labor certification the employer is attesting that all information
contained within the 9089 is true and accurate to the best of her/his
knowledge, under penalty of perjury. The listed penalties include
significant fines and up to five year of imprisonment.
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In light of the current state of the economy, it is likely that the DOL will
scrutinize this particular aspect of PERM cases closely. The DOL has said
that it will review all data available, including media reports, Worker
Adjustment and Retraining Notification Act (WARN) notices, and data created
by other DOL entities.
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Murthy Law Firm Can Advise on PERM Filings
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Worker terminations by employers seeking certifications for foreign workers
is a matter to be handled carefully when the economy is in flux. There are
many considerations in determining whether a termination is relevant to
labor certification filings and, if so, which workers must be contacted.
Thus, employers are encouraged to consult with their immigration attorneys
to seek appropriate guidance in this complex area. This should be done when
an employer has had layoffs as well as when layoffs are anticipated in the
near future. It is just as important to carefully prepare the recruitment
report and underlying documentation to demonstrate the employer's good-faith
actions throughout the recruitment process and, if needed, demonstrate the
consideration of former employees as part of the efforts to locate U.S.
workers. We at the Murthy Law Firm are familiar with the complex issues
surrounding PERM cases, and are available to assist employers with their
PERM filings. |
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