Some employers have learned the hard way that the role of representatives and attorneys is clearly separated in the Programme Electronic Review Management (PERM) rule and that a violation of this rule may have serious consequences.
Employers must be fully involved in the recruitment process of their PERM applications. Their attorneys cannot:
- review resumes;
- interview applicants; or
- take responsibility for the rejection of workers by signing recruitment reports.
However, if representatives are properly identified on the PERM form as persons who work directly for the employer, they are permitted to assist in or conduct recruitment.
The prohibition against attorneys also applies to 'agents', the latter being persons who are authorised to receive correspondence and respond to Department of Labour notices of audit, requests for information or notifications of reconsideration or appeal.
Another peculiarity of the attorney/agent paradigm is that foreign persons, including attorneys and agents, may sometimes act as attorneys without violating the PERM regulation.
The Department of Labour has not issued regulations to determine who may provide legal advice in the federal matter of labour certification proceedings, as its sister agency, the US Citizenship and Immigration Services, has in immigration matters. Because each state defines the practice of law, agents may or may not be authorised in some states to perform duties that are tantamount to the practice of law.
Two branches of the Department of Labour which have vigorously defended the integrity of consideration of US workers and their resumes are the Board of Alien Labour Certification Appeals (BALCA) and the Office of Foreign Labour Certification. They have done this by permitting only employers to engage in these tasks and never those who may have an interest in obtaining approvals rather than fairly evaluating job applicants.
Violators of the PERM rule will find their applications denied or worse, as there are several strategies to punish employers that act in bad faith. The Department of Labour can:
- outright deny applications;
- determine that employers submit to supervised recruitment (a strict Department of Labour scrutiny of the job search); or
- debar employers and their attorneys or agents for wrongdoing.
After debarring, employers may be prevented from filing PERM applications. Moreover, criminal proceedings can be commenced if there is actual fraud or misrepresentation.
While employers usually get censured together with their overreaching attorneys or agents, there are BALCA cases which held in favour of employers whose cases are in violation of the regulations. This was because these employers were victimised by attorneys or agents whose conduct resulted in an outcome that was manifestly unjust to the employers.
Employers should take a close look at their relationships with attorneys and agents to ensure that they do not participate in PERM recruitment procedures. If there is any indication that consideration of US workers is likely to be influenced by attorneys or agents, company procedures should be revised to conform to the legal and ethical requirements of the law.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
