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Bloggings: February 6, 2008

by Joel Stewart

February 05, 2008

How to place a PERM ad!

Recently I spoke to a colleague whom I had not seen for 25 years. We discussed a minor point about PERM. The question had to do with selecting the proper newspaper for the two Sunday ads and a local newspaper for the third ad. (The position was Professional and required extra recruitment.) In his case, he had a small to medium city next to a larger city. My colleague had placed the two regular 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 largcity. His question, would that would 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 arises when the job is adjacent to a large city in a city which itself is not rural as suggested above but also a lsmall or medium city. Once there was a BALCA case about ad placement in the Newark Star Ledger, a pre-PERM case, but the rule should serve for PERM as well. The question was whether the main ads (in those days employers placed ads for three consecutive days) had to be in a NYC newspaper or whether the Star-Ledger in Newark would suffice. Although the strong-handed NY SWA had long required employers in the metropolitan area, including nearby NJ, to advertise in New York City newspapers, BALCA upheld the Employer's choice of the Star-Ledger for a job in Newark. The courageous employer won that case.

Questions about appropriateness of newspapers arise everyday, however, and many employers are honestly perplexed about where to advertise. Without further guidance, employers often opt for large metropolitan newspapers, overlooking newspapers in cities nearby which themselves are not rural as contemplated in the regulation above but small and medium cities that provide valid recruitment opportunities.

One solution in the past was to call the State Workforce Agency, which oversaw 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 is to seek to discover industry standards for the area where the job will be performed. In this regard, the newspapers themselves offer facts and figures about their circulation, and the classified section may speak for itself. One may decide on the basis of such objective criteria which newspaper should be used.

Appropos of this discussion is the role placed by agencies in the placement of ads for labor certification cases. Some employers do not know about these services or are afraid to try. I would like to state 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.

After the agency places the ad, the Employer is then billed for the cost, and 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. The service is a great help.

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 agencies as well, which serve employers and their representatives, and which may be consulted for placement of ads. I only mention Adnet 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 advice 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-attorney 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 sections. Related to this issue, is the title of the job itself. Sometimes the titles have to be written in newspaper jingo. You know, certain abbreviations and words are appropriate; 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 position in the wrong section. Now, where would you place the position of "executive chef." Would this be placed under executives or under chefs? Often the answers to these questions are not logical, but based on local custom.

In conclusion, if you are still unncessarily involved in ad placements, or if you have doubts about how and where to advertise, call a professional ad agency!