UNSOLICITED ADVICE from Cletus M. Weber
Poisonous Flowers and DOL's Crazy 90-Day PWD Validity Rule
D Sounds crazy, doesn't
id you know that the Department of Labor (DOL) has a PERM rule that applies only during the spring and summer months? it? Well,
it is, but if you
don't watch out during spring and summer PERM recruitment, DOL will trap you with this rule.
Things Aren't Always What They Seem In a recent decision, Matter of Karl Storz Endos-
copy-America, 2011-PER-00040 (BALCA 12/1/11) (en banc), the Board of Alien Labor Certification Appeals (BALCA) highlights the practical arbitrari- ness (and inherent danger) of the rule. Everything about the rule appears deceptively reasonable on its face. Title 20 of the CFR §656.40(a) requires PERM employers to obtain a prevailing wage de- termination (PWD) for all PERM applications. In turn, 20 CFR §656.40(c) creates a timing relation- ship between the prevailing wage determination and PERM recruitment. It states that the employer either: (a) must "begin the recruitment" during the validity period of the PWD; or (b) must file the ETA-9089, Application for Permanent Employ- ment Certification, during this period. Aside from being at odds with the regulatory
preamble (and having other issues), Matter of Karl Storz Endoscopy-America seems reasonable on its face, too. It states that "begin the recruitment" refers only to the first item of recruitment (not
"[The rule] effectively creates a seasonal rule—completely innocuous in the dormant fall and winter months, but potentially deadly in the spring and summer."
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to just one of the items, as was held in other BALCA decisions). The problem is 20 CFR §656.40(c), with respect
to the portion that addresses when the employer chooses to "begin the recruitment." It effectively creates a seasonal rule—completely innocuous in the dormant fall and winter months, but potentially deadly in the spring and summer. This means that when you request a PWD near the July 1 annual cut-off date, DOL then limits the PWD to only 90 days (instead of one year) to allow DOL to update its online wage database.
LISTEN AND LEARN: Creative Strategies for Prevailing Wage Determination (LCA/PERM) Seminar Recording (8/18/2011)
Like Oleanders, this PERM rule may seem innocuous but could be hazardous.