In a recent case, an employer used a private employment agency to place an ad for professional recruitment. The agency put its own name in the ad and not the name of the employer; as a result, the Department of Labour denied the Programme Electronic Review Management application.
The PERM rule specifically requires that an employer's name and location be included in the two mandatory Sunday newspaper ads that form part of the basic recruitment requirements described in Section 656.17(f). However, it does not state that the employer's name must appear in other forms of recruitment as described in Section 656.17(e).
In a series of decisions – including an en banc ruling in Symantec Corp (2011-PER-1856, July 30 2014) – the Board of Alien Labour Certification ruled that, while an employer's name must be included in Sunday newspaper ads, the Department of Labour cannot extend this non-regulatory requirement to other forms of recruitment.
The recent decision in RML Construction, Inc (2012-PER-1774, August 31 2016) is noteworthy because it limits the power of the Department of Labour – an administrative agency with wide discretion – to interpret the PERM statute and regulation.
RML clarifies that agency memos and other forms of guidance are mere opinions, while statutes and regulations are laws that must be followed. Although the Supreme Court has held that agency opinions should be accorded deference because they are presumed to be well-founded, agencies cannot create laws through interpretations unless they flow directly from the clear intent of the law.
In RML, the Department of Labour focused on the section of the PERM rule regarding the requirement to place two Sunday newspaper ads that include the employer's name, which it confused with a different section stating that ads placed by private employment agencies can be used as an optional form of recruitment.
On appeal, the judges – finding in the employer's favour – held that the Department of Labour should have focused not on the employer's name, as is normally the case for newspaper ads, but on the occupation in a more general sense.
Symantec – a pivotal precedent – states that the PERM rule's purpose is to permit employers to "advertise for the occupation involved in the application, as opposed to the specific job opportunity for which certification is sought." Basically, this means that the employer's identity need not be included, because only the existence of a job opportunity is important.
The requirement to include an employer's name has been problematic, as employers do not always want to include their names in ads and cannot include their company name in those placed by private employment agencies; if the private agencies were to advertise the name of the employer, they would have no way to reap the rewards of their labour.
RML asserts that not all forms of recruitment are equal, but employers should remember that each form of PERM recruitment has its own nuances which will be interpreted by the Department of Labour and administrative law judges. In RML, the board discussed only the optional recruitment step to use private employment agencies.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
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