FOLLOWING UP ON THE EMPLOYER REFERRAL NOTICE REQUIREMENT

In the comments to a recent posting on this Blog posting, a reader, “Michael,” raised an interesting point. Because of the lengthy nature of my reply, I’ve decided to re-post the exchange as its own Blog posting.

Michael said...

This does bring about an interesting point regarding the importance of internal media posting. The notice of filing alone does not satisfy the requirement of documentation awareness.

"In addition, the employer MUST publish the notice in any and all in-house media..." (emphasis added) §656.10(d)(ii)

Why did BALCA not specify that both (a) and (b) need exist together?

As with a lot of these PERM recruitment requirements, it is difficult to understand precisely what the DOL was aiming for in (d)(ii).

I read (d)(ii) to mean that other in-house media is only required if that in-house media is used to recruit for similar positions. There are four scenarios I can envision in which this is relevant:

1. An employer has a company-wide newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERM position.
2. An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted.
3. An employer has a newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERM position. Additionally, if the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.
4. An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted. However, if the employer elects to post the notice in the newsletter and the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.

Obviously much of these scenarios are very fact specific. Thanks for the question/comment, Michael. It was a good one.