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Joel Stewart on PERM Labor Certification

How to place a PERM ad!

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Recently I spoke to a colleague whom I had not seen for 25 years. He called to discuss a minor point about PERM. The position was Professional and required extra recruitment, so he wanted to know if had selected the right newspaper for advertising both for the two Sunday ads and for the third ad in a local newspaper. The place of employment was a small city next to a larger city. My colleague had placed the two Sunday ads not in the newspaper of the larger city but in the newspaper of the smaller city and wanted to know if he could now place the "professional" ad not in the newspaper of the smaller city but in the newspaper of the larger city. Would this be OK?

The PERM regulation does not give a great deal of guidance on this point. 20 CFR 656.17(2)(ii) states, "Place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity." The regulation continues, "If the job opportunity is located in a rural area of intended employment that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment."

The biggest problem in selecting the right newspaper arises when the job is in a small to medium city adjacent to a large city, and neither city is rural as suggested above. There was a BALCA case about an ad placed in the Newark Star Ledger, a pre-PERM case. The question was whether the main ads (in those days employers placed ads for three consecutive days) had to be placed in a NYC newspaper or whether the Newark Star-Ledger would suffice. Although the strong-handed NY SWA had long required employers in the metropolitan area to advertise New Jersey jobs in New York City newspapers, BALCA upheld the Employer's choice of the Newark Star-Ledger for a job located in Newark. The courageous employer won that case.

Questions about appropriateness of newspapers arise in various contexts everyday, and many employers are perplexed about where to advertise. Without further guidance, employers often opt for large metropolitan newspapers and not for a newspaper in the city where the job is located, because they fear DOL will reject a newspaper in a smaller city nearby.

One solution in the past was to call the State Workforce Agency, which oversees the recruitment process, and ask their opinion. In effect, the decision would then be made by a representative of the state agency, whose recommendation could be accepted or not by the certifying officer. Many BALCA cases demonstrated that employers may not rely on SWA decisions where federal law is concerned. Furthermore, the SWAs no longer assist employers to place newspaper ads.

Another solution has been and continues to be to discover industry standards for the area where the job duties will be performed. In this regard, regional and local newspapers themselves offer facts and figures about their circulation. Furthermore, the classified section may speak for itself. One may then decide on the basis of such objective criteria which newspaper should be used.

Atropos of this discussion is the role placed by ad agencies in the placement of ads for labor certification cases. Some employers do not know about these services or are afraid to try them out. The fact is that ad agencies provide an enormous service to employers who place recruitment ads. First, the agencies place the ads (after confirming copy with the Employers) and then bill the Employers. As a result, employers do not need to spend valuable time calling the classified ad section of newspapers. Moreover, as Employers are not professional copy writers, it is likely that an ad placed over the phone in this manner may contain unexpected errors. Since the Employer is billed for the cost of the ads, the Employer's representative does not have to be involved in the billing process. This saves a great deal of time for all concerned. Who pays for the agency's service? The agencies earn a commission for the ad placements, so the employers do not have to pay.

We started using the Adnet agency in NYC many years ago. At one time Sam Udani (principal of ILW.COM) was a co-founder [changed 10/06/09 - Editor] of Adnet. The business was setup with Sam's usual expertise and continues to run very smoothly even though Sam dedicates all his time now to ILW.COM. There are other ad agencies as well, which serve employers and their representatives, and which may be consulted for placement of ads. I only mention Adnet in print because, to my knowledge, I believe it is the oldest agency, and it is the only one we have used. To date, we have been 100% satisfied.

Although agencies like Adnet should not be giving legal advice, they may give professional advice, and their professional opinion about the placement of ads is invaluable. In examples like the ones set forth above, where the choice of newspaper is not easy to make,  we always ask Adnet their opinion, since they have experience placing ads all over the country, and can provide advice on industry standards. If you wish, you can always pick up the phone and call a colleague to ask an opinion about placing an ad, but calling a professional agency is a better option.

Although agencies should not write ads for employers, their opinions may be useful. For example, one of the most difficult questions that arises is in which section of the classifieds to place the ad. This is especially true in newspapers that have many different classified sections. Related to this issue, is the title of the job itself. Sometimes the titles have to be written in newspaper jingo. Certain abbreviations and words are appropriate in ads; others are not. More than once, an employer has advertised a position, but used the wrong letters or words in the ad, or placed the job opportunity in the wrong classified section.

Now, where would you place the position of "Executive Chef," under Executives or under Chefs? Let me know what you think!

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  1. Blaire Fanning's Avatar
    Please also look at the services of for PERM ad placement - all done online
  2. James Kelly III's Avatar
    You can also try for ad placements.
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