Cite as "AILA InfoNet Doc. No. 09021762 (posted Feb. 17, 2009)"
The PERM regulations provide that in the event of a layoff within the area of intended employment within six months of filing, the employer must notify and consider all potentially qualified laid off workers in the occupation or a related occupation. 20 C.F.R. § 656.17(k)(1). The following is a list of practice tips to consider when advising a client experiencing layoffs and while completing Form ETA 9089. As every situation is different, members should be sure to conduct their own research and reach their own conclusions as to the best way to proceed when faced with this issue.
A layoff is defined as any involuntary termination other than for cause. 20 C.F.R. § 656.17(k)(1). This definition does not consider the number of workers involved or presence of adverse business factors. The employer may not think of an isolated termination without cause as a layoff. Therefore, do not ask the employer if they have had layoffs; instead ask if they have had any terminations other than for cause.
Acceptable means of notifying laid off workers have not been specified by the DOL. Examples of steps employers have taken to fulfill the notification requirement include: 1) sending an e-mail, letter, or certified mail letter to laid off workers; or 2) posting the position on the employer's website in conjunction with including language in termination letters to check the website for currently available job openings. DOL has not opined as to whether the above steps are acceptable.
Note that the regulatory language does not require the employer to notify each and every worker in the occupation or related occupation, only those "potentially qualified."
The employer must notify "all potentially qualified" laid off workers in the occupation or related occupation. 20 C.F.R. § 656.17(k)(1). Presumably this is limited to workers within the geographic area since the definition of layoff is limited to the "area of intended employment." Id. The area of intended employment is defined at 20 C.F.R. § 656.3.
A "related occupation" is defined as any occupation for which a majority of the essential duties are the same. 20 C.F.R. § 656.17(k)(2). This is a different definition than the test for purposes of considering whether experience was gained in a similar position with the petitioning employer. 20 CFR § 656.17(i)(5)(ii).
The regulation does not specify whether an employer must first notify then consider potentially qualified workers, or first consider then notify potentially qualified workers. In some cases, an employer may be familiar with the pool of laid off workers and can consider whether the laid off workers are potentially qualified to determine whether notification is required. In other cases, an employer may choose to notify all potentially qualified workers who were laid off, and then consider any workers who apply for the position.
The regulations do not specify any action to be taken if the layoff takes place after filing; there is no mechanism to notify the DOL when a case is pending and the Supplementary Information indicates that the Certifying Officer will know of a layoff if not informed directly through other channels including WARN Act notices, newspaper articles and internet searches. 69 Fed. Reg. 77326, 77354-55 (Dec. 27, 2004).