Use of a local paper as one of the required alternative recruitment efforts for professional positions is now under scrutiny. One of the requirements of PERM is that the company recruits for the position to test the market as a way to ascertain if there are any qualified U.S. workers available and willing to work in the position. In addition to newspaper ads, the company must also engage in three additional recruitment steps out of a list of ten permissible methods. One of the recruitment alternatives is placement in a local or ethnic newspaper, the use of which can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.
What is a local paper? The term “local paper” has never truly been defined by the Department of Labor (DOL). The DOL does not issue revised regulations when it wants to clarify one of their rules; instead they issue a Frequently Asked Question (FAQ) giving their interpretation as to how a given issue should be handled. What qualifies as a local paper has never been explained, despite the many PERM FAQs issued by the DOL. Since PERM came into existence in 2004 the DOL has issued FAQs on many topics including how to file an application by mail, how dates on the SWA posting should be calculated, and how an employer referral program should be utilized. It has not, however, issued any FAQs defining a local or ethnic newspaper including what shape such a newspaper should take. The only guidance on use of a local newspaper is a general rule-of-thumb that a local or ethnic paper cannot be a Pennysaver-type publication.
PERM denials based on use of local paper. Recently, the DOL has begun to deny PERM cases, without notice, because of the specific local or ethnic newspaper used, notwithstanding the lack of an FAQ. In its denials, the DOL indicates that a local or ethnic newspaper must contain employment advertising that is akin to the advertising being used in the PERM recruitment. In other words, unless the local or ethnic newspaper has other professional job ads within it, it appears that the DOL will deny the case. This is not a requirement in the regulations and has not formerly been the DOL’s position. However, there may be support in the DOL’s position in the preamble to the PERM regulations that states that local and ethic newspapers may be used “to the extent they are appropriate for the job opportunity.”
What to do? DOL’s new limitations on the use of local or ethnic newspapers are frustrating because many local newspapers may have a large readership, but do not run professional ads on a regular basis. The goal of recruitment is to reach the greatest number of U.S. workers possible to inform them of the open position, and placing limits on the use of wide-ranging local or ethnic newspapers is nonsensical. It seems that the safest bet at this point is not to use this form of recruitment unless the employer is satisfied that the local or ethnic newspaper is generally used for professional advertising. The local or ethnic newspaper under consideration should be examined prior to use. As most local or ethnic newspapers do not run this type of employment advertising, use of this form of recruitment may be going the way of the Dodo.
Posted by: Sarah Duckham, Senior Attorney