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Joel Stewart on PERM Labor Certification

Suppression at State Workforce Agencies

Rating: 5 votes, 5.00 average.

The PERM Rule has given a carte blanche to the states to determine prevailing wages and how 30-day job orders should be placed. The Rule requires employers to place a 30-day job order with the SWA before a PERM case may be properly filed with DOL, however, states vary greatly in methodology. Some states have very simple Job Order Forms to fill out, with many required details about the Employer, while others have very few instructions or requirements. It is also a well-known fact that the vary in their approach to assisting employers who want to file applications for foreign workers. Some states are hostile, others are friendly; variations may also exist from county to county, city to city, or even within the same SAW offices depending on the point of view of specific SAW employees. Recently I noticed that one state has an elaborate system of Job Order Information available to Employers at the time of filing, with many choices left to the discretion of the Employer. The issue that called my attention is "Suppression" of job order information. Suppression may occur when job workers apply for jobs through the SWA which then channels the applicants to jobs for which they may be qualified. Altrnatively, job workers would scan available jobs and apply without the assistance or intervention of SWA staff. In the state I analyzed, I noted that there are three options for Employers to place jobs with the SWA with varying degrees of suppression: (1) Full job description and employer contact information may be displayed online. Applicants who see the job orders on-line will click to attach their resume to the self-referral, which is sent directly to the employer. SWA staff may also create a referral. Employers manage their referrals by clicking to see the Results link when viewing a list of Job Order Applicants. (2) Job information (but not Employer contact information) is displayed online. Job seekers must apply with the intervention of SWA staff. Applicants are not able to attach their resume aftr clicking that they are interested in applying. Instead, the system places their information into a special queue for staff to determine applicant eligibility. SWA staff members review interested applicants to locate job applicants and refer to Employers. (3) No information is displayed online about the job or about the employer. Job seekers cannot search for and retrieve these job orders; only SWA staff and employers are aware they exist.  SWA staff review qualifications of job applicants and refer them to jobs for which they may be qualified. All three options offer a fair method of filing the 30-day job order. Option one offers the job to the public at large who may simply be "shopping" around, and full Employer information is also listed on-line. This may create a problem for Employers who do not wish to publish information about themselves before receiving resumes. Option two provides job seekers the possibility to view jobs and apply for them, without knowing the name of the employer, however, the employer does not benefit from any pre-screening by the SWA. Option three provides job seekers with the option to express their interest in employment, and trained SWA staff guide them to jobs for which they appear qualified. "Suppression" refers to the non-availability of job information to job seekers whose applications are reviewed by SWA staff before being reerred to appropriate Employers. During the pre-PERM era, Suppresion was common in some states, but not in all. In addition, when DOL began its streamlining by implementing RIR nation-wide, the SWA's were instructed to review job applicants and refer only those who appeared qualified, while disposing of resumes from applicants who did not appear qualified. The PERM regulation  As mentioned above, the federal rule does not provide detailed instructions to the SWAs. 20 CFR 656.17(e)(2)(i), "Job order. Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step." The FAQ corresponding to this section states that the Employer must always file the job order with the assistance of the SWA, and not simply file a job order. This distinction becomes clear in states which offer Employer the opportunity to use an existing databank which may be entered without going through the SWA. In this situation, the application must be filed through the SWA itself and with the SWA's assistance. In conclusion, in states where options exist, Employers may choose between various options offered by the SWA, all of which satisfy the PERM rule. The only regulatory requirement is that the job order be placed with the SWA.

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