During the COVID-19 pandemic, the closure of workplaces has raised numerous questions about how to fulfill the PERM Notice of Filing requirement during a full or partial office closure and a remote work mode.
PERM regulations require that prior to filing a PERM, or labor certification application, with the Department of Labor (DOL), the employer must notify its employees of the job opening. Specifically, the employer must notify the collective bargaining representative, if applicable, or post a hard copy of the Notice of Filing at the actual worksite for 10 consecutive business days. In addition to a hard copy posting, employers who have electronic or print in-house media must also post the Notice of Filing in such media consistent with standard procedures for recruiting for similar positions. Further, PERM regulations indicate that the notice must be visible to U.S. workers. Therefore, we received many questions regarding whether a hard copy of the Notice of Filing at the actual worksite is still required if the office is closed an no one will see the notice. Additionally, some employers have asked whether a hard copy of the Notice of Filing can be replaced with an electronic one.
On May 20, 2020, the DOL confirmed that during offices closures and remote work mode, the Notice of Filing requirements for PERM processing remain the same. Then, on July 23, 2020, the DOL confirmed that the PERM Notice of Filing requirement is flexible and employers can satisfy the requirement by posting the PERM Notice of Filing on the exterior door of its building, office, or front entry even if the work place is 100% closed and employees are 100% remote, so long as the business is operational. Finally, the DOL also indicated that it does not customarily issue an audit questioning the level of operability of the business or level of occupancy of the building and does not anticipate doing so in the future.
In general, the DOL uses a good faith compliance standard in enforcing PERM regulations. Therefore, if the PERM Notice of Filing must be posted during a remote work mode when few or no workers will see a hard copy of the Notice of Filing in the office, then the hard copy should still be posted for 10 consecutive business days at the actual worksite location and the employer should provide an additional electronic notice to employees who are working from home by posting the Notice of Filing on the company’s intranet or directly emailing all its employees.
If you have any questions regarding the 10 Day PERM Notice of Filing requirement, please contact an attorney at Minsky, McCormick & Hallagan.