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Joel Stewart on PERM Labor Certification

PERM: Outsourcing by State Workforce Agencies

Rating: 2 votes, 5.00 average.

An Employer reported denial of certification because, although it provided a copy of the State Job Order Form, there was no corresponding proof of publication from the State Workforce Agency (SWA).

The misunderstanding may have stemmed from the fact that the regulations require that the Employer place the 30-day ad directly with the State Workforce Agency, i.e., through the input system on-line (or otherwise) managed by the SWA personnel, but not independently through a separate input system available to employers.

In some states the Employer may place an ad directly on line with the State, as if with a private employment site, without consultation through the SWA, and alternatively the Employer may place the ad through SWA personnel, who review and approve it. Some SWA's review the ads closely and make changes on-line, or ask the Employers to make changes.

The DOL wants the SWAs to be directly involved. First, the involvement provides more opportunities for the federal government to check the database of the States, through a transmittal of data, and second, the SWAs can monitor the ads, in case of any irregularities or abuse.

To be sure that the placement of the ad on the site is directly through the SWA, and not independently, the Employer must register with the SWA and obtain a state ID user name, password, and/or registration number.

As mentioned above, the name of the site may be misleading as to whether it is an official state workforce agency. In Florida, for example, the name of the site is "Employ Florida" and the employer received a denial because the printout from the site did not say "State Workforce Agency".

To complicate the situation, a recent trend may be for SWAs to outsource job orders through privately contracted agencies.

In Florida, the official title of the SWA is "State of Florida Agency for Workforce Innovation," however, on that site, job orders are filed with a sub-agency, "Employ Florida Marketplace." No less than the Governor of Florida proudly announced on-line,

"Welcome to the Employ Florida Marketplace, Florida's official on-line portal to virtual job-matching services and many other workforce resources. It's a powerful tool, created through partnership between government and the private sector, to respond to workforce needs in our state."

It seems that the US Department of Labor PERM examiners shouold be sophisticated enough to understand that the site "Employ Florida" is the same as the "State Workforce Agency," but alas this is not always the case.

The author suggests that each employer check whether the State Workforce Agency in the jurisdiction of intended filing is outsourced to a separate agency, and if so, determine whether the job order may be placed directly with the SWA, or only through the outsourced agency. If only through the outsourced agency, then a detailed explanation is required when responding to an audit!

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