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Joel Stewart on PERM Labor Certification

PERM: The Kanter Conundrum

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Many thanks to Ann Kantor, a colleague from Sacramento, California, for sharing an interesting Prevailing Wage issue with us.

In California,  the State Workfoce Agency issued a Prevailing Wage Determination for only 90 days.

The Employer relied on the Prevailing Wage Determination however, the wage was in error, because it did not correspond to the on-line wage.

The Employer then asked for a correction of the wage, but by the time it was issued, the Prevailing Wage had changed again and was no longer valid!

The job offer was for a civil engineer, Level Two. The first PWD was $72,051, however, according to the on-line wage library, the wage should have been $75,566. When a new PWD was made, it was $75,566.

However, the Employer had already begun recruitment based on the first wage, with  a wage offer in a range from $72,051 to $74,051.

A denial was issued, but it was too late to refile the application with a corrected wage, since the 180 day recruitment period had ended.

The Employer has filed a Motion to Reconsider, arguing that it tried to recruit in good faith and that if any error occurred it was harmless.

Will the Employer prevail?

The DOL has stated, in the PERM Rule, that there is no Harmless Error permitted, and that PERM applications may not be amended or changed in any way after they are filed.

In this case, the error occurred due to a failure of the system to grant the Employer a reasonable opportunity to obtain a reliable Prevailing Wage Determination for its PERM case and conduct recruitment.

In some harsh decisions, prior to PERM, BALCA has sometimes held that an Employer may NOT rely on an opinion or statement from a State Workforce Agency, and that the Employer must double check instructions or statements issued by the State, as the State Workforce Agency is not infallible. In fact, BALCA has stated that the attorney, how the State Workforce Agency, is responsible for an error made by the State.

Despitethe demise of Harmless Erros, in some PERM decisions, the Board of Alien Labor Certification Appeals has determined that minor corrections may be made to forms if they are purely due to typographica or ministerial errors or due to a computer glitch on the government website.

The problem faced by the Employer is that if the wage was not correct, the DOL would be constrained to approve the application. In fact, a Certifying Officer once denied an application, because the wage offer was several pennies under the actual prevailing wage.

The Employer argued in its Motion to Reconsider is to ask the Certifying Officer to determine if the first prevailing wage determination was correct. The State Workforce Agency determined the prevailing wage at a time when it was in flux and neither the Employer nor the State Workforce Agency could have relied on the Prevailing Wage Determination, because it was not valid for a period of time sufficient to conduct recruitment. The Prevailing Wage Determination was valid for 90 days, but the recruitment period was valid for 180 days).

The DOL routinely states in its denials that Employers may correct errors by simply refiling applications with required amendments, but in most cases, the recruitment period of 180 days has long since ended, and the employer would have to begin a totally new recruitment period of 180 days to correct the error.

While the Prevailing Wage Determination does not have to appear in the advertisements or recruitment efforts, it is required on the ETA 9089 Form, in the 30-day job order placed with the State Workforce Agency, and in the Notice of Filing.

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  1. Elsa Gonzales's Avatar
    Joel, I enjoy reading your articles. Recently, DOL denied a labor cert. citing 656.40(a). The TX SWA assigned OES EDC instead of OES All Industries. In my motion to reconsider I included GAL 2-99 and 1-00 plus 3 BALCA cases. I also included PWR forms for a number of states. THE PWR form for TX was one of a handful never amended to include OES EDC even after ACWIA was enacted. Other states, liked CA specifically name alternative wage sources. At least FL has a fill in the blank. The motion was granted 6 days after filing, I think in part because Health America has forced DOL to back off from their original strict construction point of view. You mention that the wage should be included in the job order. I include it in the posting notice but not in the job order. Is there a reg. cite that requires including the wage in the job order?
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