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Joel Stewart on PERM Labor Certification

Roving Employees & PERM

Rating: 2 votes, 5.00 average.

I would like to advise that it is an unsettled area of law, but the best way to understand it is to look at the pre-PERM roving employee rule and then looking at the PERM rule to see how the issue is treated.>>




In pre-PERM, the emphasis was on the place where the labor certification was filed. This would be a local office of the State Workforce Agency. The application would be filed with the SWA in the jurisdiction where the main office of the Employer is located. Once you knew which SWA office to file in, the rest was easy - the prevailing wage determination, 30 day job order and advertising would be under the direction and supervision of the SWA, including the 10 day posting (which is now called the Notice of Posting).


 


In the year 2000, our colleague Sheela Murthy wrote a short and pithy summary of the rule in effect at that time: http://www.murthy.com/news/UDlcfre.html>>


 


However, with the advent of PERM, and the subsequent demise of the SWA participation in prevailing wage determinations, the employer is on its own to determine where to post the Notice of Filing, how to indicate the job site for prevailing wage purposes, where to file the 30-day job order and where to advertise.


>>


The PERM Rule does not officially overturn or modify the previous rule on roving employees, however, cryptic remarks referring to Schedule A have appeared in the FAQ's and PERM Stakeholders Minutes.


>>


The gist of these remarks may be interpreted like this: Employees whose work requires them to continually travel to different work locations are typically called roving employees, for whom it becomes increasingly difficult test the market and certify that there are no qualified employees available to fill the position.


 


The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations.


>>


The prevailing wage form gives guidance for multiple work sites:


>>










7. Will work be performed in multiple worksites within an area of intended >>


employment or a location(s) other than the address listed above? * >>


 ?Yes  ?No >>


7a. If Yes in question 7, identify the geographic place(s) of employment with as much specificity as possible. If necessary, >>


submit an attachment to continue and complete a listing of all anticipated worksites. >>



 


>>


Note that the situation is different for H-1B's, where different prevailing wages may be required for different work places.


>>


And so there it is. What's good for Schedule A is good for the basic labor certification process (for non schedule A cases).


>>


Employers may place the Notice of Filing in each workplace, and use the prevailing wage calculated for the employer's headquarters with disclosure of other worksites on the Prevailing Wage form. >>


 


All the recruitment may be based out of the Employer's Headquarters, however, and, just for good measure, the Employer may place a copy of the Notice of Filing in the Employer's Headquarters too, well, just in case DÖL changes its mind.

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