This topic is of great interest, since the DOL has focused on a national law firm and its method of advising employers to interview US workers for job opportunities. The law firm and the DOL entered into an agreement defining the correct manner of reviewing, interviewing and identifying qualified and non-qualified workers. The criteria are the following:
- Employers should not receive memoranda from attorneys advising to contact the attorney to discuss worker qualifications.
- Attorneys may not interview job applicants for their clients (employers) and all resumes received by attorneys must be forwarded promptly to the employer.
- Attorneys may not conduct any preliminary screening of applications or resumes before a client's hiring staff does, other than routine clerical or ministerial organizing of resumes which does not include and is not based on any assessment of, or comments on, the qualifications of any applicants.
- Attorneys should forward all resumes to employers.
- Attorneys may only participate in the interview of a U.S. worker unless the attorney routinely performs that function for the employer.
- Attorneys may not dissuade a client from the client's initial determination that a particular applicant is qualified, able, willing and available for a position for which the employer is considering.
- It has also been suggested by DOL in its FAQ's, that attorneys may review the resumes of workers who have been rejected,to see if the employer rejected them legally, but not the resumes of workers deemed qualified, since this would be seen as an act of dissuasion, to dissuade the employer from seriously considering the applicants.
Notwithstanding these guidelines, attorneys may advise employers about the PERM Rule and legal interpretations, such as BALCA decisions, legal memoranda, FAQ's and other information that may guide employers through the thorny process of considering whether job applicants are qualified, able, willing and available.
Note that the interview process, or consideration of resumes, is not limited to whether the applicants are qualified, but also whether they are able, willing and available.
The penalties for not following DOL guidelines are sanctions authorized by the PERM Rule itself, including audits, denial of the application, or supervised recruitment. In case of serious violations, rising to the level of misrepresentation or fraud, criminal investigations and penalties may ensue.
In the current economic crisis, with US unemployment rising, there are more US workers looking for employment, and employers will have to be more careful than ever to conduct recruitment procedures according to the rules!