This week an attorney called with a question about the Employee Referral Program. This type of recruitment may be used for positions designated as "Professional," when three out of ten options may be used for recruitment.
Although some PERM applications have been denied, because the Employer did not state the incentive in the Notice of Employee Referral Program, the case that came to my attention was different, because the Employer was concerned with the fact that the Program may have overlapped into the last 30 days of the 180 day recruitment period.
During the last 30 days, only one of the 10 Professional types of recruitment may overlap, and the employer advised that there were two types of recruitment overlapping, one being the Employee Referral Program.
In actual fact, the Employer had put the Employee Referral Program on its internal website for a period of 30 days, 10 of which occurred before the final 30 days of the 180 day recruitment period, and 20 of which occurred during the final 30 days of the 180 day recruitment period.
As a result, te Employer feared that the Employee Referral Program was defective, because part of it occurred during the quiet period (reserved for job applicants to respond to recruitment efforts).
However, upon examination of the PERM Regulation and a 2010 BALCA decision, the Employer was able to come to the conclusion that the Employee Referral program was sufficient, because the PERM Rule does not require that the Program continue for 30 days. On the contrary, Employer recruitment, that meets the minimum requirements of the regulation, may continue indefinitely beyond the relevant dates of the 180 day recruitment period. For example, a newspaper ad required to run for two Sundays, may run for 52 Sundays, and a 30-day job order in the State Job Bank may continue for more than 30 days.
The PERM Regulation states, "The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered."
In fact, in a 2010 BALCA decision (Total System Services, Inc.) the Employer had announced the existence of the Employee Referral Program only once, and the publication was found sufficient.
Another way to explain this problem would be to analogize the period of recruitment to other periods of recruitment. In the case of a Notice of Filing, for example, the Employer must post for 10 days, and, in general, the period of 10 days is usually held to be sufficient, when the regulation does not state a longer period of time.
Using these legal guidelines, we concluded that the first 10 days, prior to the last 30 days of the 180 day recruitment period, were sufficient to meet the requirements of the Program, without regard to the remaining 20 days that the program was posted on the site.
Once an Employee Referral Program is published, posted or distributed, in accordance with the Regulation,and it is not withdrawn, it meets the requirement of the PERM Rule, even if it continues beyond the normal recruitment period, or beyond the filing date of the PERM application.