You all know that the country is reeling from widespread layoffs in almost every industry, including financial services, automotive, housing, and manufacturing.What you may not know is that layoffs can have a significant effect on certain labor certification cases that you file.

If your company files a labor certification application (PERM) any sooner than six months after a layoff, it will have to engage in additional recruitment steps. Just to be clear about terms, the Department of Labor (DOL) defines a layoff as any involuntary separation of one or more employees without cause, including as the result of reductions in force, restructuring, or downsizing.

Not every layoff will trigger the additional recruitment, but the additional steps will be required in the following circumstances:

  1. The layoff is in the same or “related occupation” for which your company is sponsoring a foreign national for a PERM application;
  2. The layoff occurred within the six months immediately prior to filing the PERM application;
  3. The layoff is in the “area of intended employment” of the foreign national who is the beneficiary of the PERM application.

We discuss these and other terms in greater detail, below:

1. Related Occupation

The DOL defines “related occupation” as a position requiring workers to perform a majority of the “essential duties” of the job for which certification is sought. Although the term “essential duties” is not defined by the DOL, the term would seem to have reference to the core elements and competencies of the job, as opposed to peripheral duties.

2. Within Six Months of Filing the PERM Application

Additional recruitment is required if the PERM application is filed within six months of the layoff. Although the DOL has offered no guidance on the question, we believe that the six months is measured from the actual layoff, and not from the date that notification is given to the worker of some future layoff. For example, if a worker is notified on November 30, 2008 that he will be laid off on December 31, 2008, the additional recruitment steps will be implicated if your company files the PERM application any sooner than July 1, 2009.

Note that the six-month rule applies to PERMfilings, not to PERMrecruitment. So, in our example, though your company may not want to file its PERMapplication any sooner than July 1, 2009, it can conduct recruitment for the position earlier than July 1.

3. Area of Intended Employment

The additional recruitment steps in the face of a layoff are triggered only if the layoff is in the area of intended employment of the sponsored foreign national. In another context, the DOL has defined “area of intended employment” as the area of normal commuting distance to the place of employment. Realizing that there cannot be a rigid measure of distance that constitutes “normal” commuting distance (sometimes it may be 20, 30, or 50 miles), the DOL has a few bright line tests: If the place of employment is within a Metropolitan Statistical Area or a Primary Metropolitan Statistical Area, any place within those areas is deemed to be within normal commuting distance.

If you decide to file a PERM application within six months of a layoff, then you have some additional obligations: You must “notify” and “consider” all “potentially qualified” laid-off U.S. workers in the area of intended employment.*

4. Who Is a Potentially Qualified Worker?

The DOL regulations on layoffs are sparse, and offer no definition of what it means to be “potentially qualified” for a position. However, in the supplementary information to the final PERM regulations, the Department seemed to suggest that a laid-off worker might be potentially qualified if, by a suitable combination of education, training, or experience, he is able to perform the job in a “normally accepted manner.”

A laid-off worker may also be deemed to be qualified if he can acquire a skill necessary to perform the PERM job during a reasonable period of on-the-job training. Again, no definition is provided for the terms “skill” or “reasonable period.” Presumably, a skill can include something along the lines of a computer application, or a methodology. As for “reasonable period,” the DOL has stated that that will vary in each case, depending on the occupation, industry, and job opportunity.

Example:

Your company filed a PERM application for a Senior Database Administrator for which it required a Master’s degree in Computer Science or Electronics Engineering, and three years of experience in the position offered. A laid off worker applies for the job. He has a Master’s degree in Electronics Engineering and two-and-a-half years of experience in the position.

Though this worker does not meet the minimum stated requirements, if the DOL believes that he can perform the job in a normally accepted manner, it will deny certification in this case.

5. Notify and Consider

Presumably, your company has the resumes of all its potentially qualified laid-off U.S. workers. Those who appear to meet the requirements set forth in the labor certification application, including those who may qualify by virtue of a suitable combination of education, training, and experience, must be notified by the company, and, if they express an interest in the position, be interviewed.

There is some uncertainty about how wide the notification must be. Must the employer notify all potentially qualified laid-off former employees throughout the country, or only workers it has laid off in the specific area of intended employment? Based on informal discussions that we have had with DOL officials, we believe that the intent of the regulation was to limit notification only to those laidoff workers in the area of intended employment.

The best way to document that an attempt has been made to notify a laid-off worker is to send a letter, certified mail, return receipt requested, asking the former employee to contact the company. Precise information must be included so that the employee has complete contact information for the person he is to speak to. If there is no response to the company’s letter, you should send out at least one additional letter. Careful notes should be kept of all interviews, whether in-person or on the telephone.

We expect that the DOL will issue guidance on its layoff rules in the coming months. As soon as it does, we will advise you of these clarifications in another Client Alert.