Impact of Layoffs during the PERM process

Employers should keep in mind of additional requirements during the PERM process if there has been a layoff within 6 months of filing the PERM application. The relevant regulation states the following:

If there has been a layoff by the employer applicant in the area of intended employment within six months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (by the employer applicant U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.

20 C.F.R. § 656.17(k)(1)

What is a layoff?

A layoff is “any involuntary separation of one or more employees without cause or prejudice.” 20 C.F.R. § 656.17(k)(1). The regulation does not apply to individuals fired for cause, nor does it apply to contractors. Contractors are not considered employees and do not need to be included in the layoff analysis.

When is the relevant period?

Layoffs become relevant when they happen in the six-month period preceding filing the PERM application. 20 C.F.R. § 656.17(k)(1).

Who must be notified, and for what position?

The employer applicant must notify recently laid off workers during the aforementioned 6-month period. These individuals must be U.S. workers, who (1) worked in the area of intended employment and (2) worked in the occupation for which certification is sought or in a related occupation.

A related occupation “is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.” 20 C.F.R § 656.17(k)(2).

In order to identify a related occupation, the employer should:

  1. compare the PERM position to other potentially related occupations by listing each of the essential duties; and
  2. assign the percentage of time attributed to each duty. If more than 50% of the essential duties are in common between the PERM position and the potentially related occupation, then best practice dictates that employees in the related occupation position who were laid off within the last six months should be considered for the position.

How shall “notification” to the potentially qualified laid off U.S. workers be made?

While no specific notification method is prescribed by DOL, an employer should select an option that it believes in good faith will reach the individual. Such notification can be done by Federal Express or any other courier, certified mail, fax, or e-mail to the last known contact for each laid-off worker.

The notification must:

  1. Provide a full description of the specific job opportunity;
  2. Include clear instructions; and
  3. Invite the worker to apply for the position.