On December 21, 2010, the DOL posted a new FAQ to clarify how to count the 10 consecutive business days for posting a Notice of Filing in connection with a PERM case.
By way of background, the 10-day posting confusion is an old one. Back in the days of pre-PERM, the local State Workforce Agencies strictly enforced an interpretation of the rule, so as to prohibit Employers whose businesses were open on weekends and holidays to include those days as valid posting. As a result, Employers were required to post about 14 days, and, if holidays occurred during the 14 day period (Federal, State or otherwise), the period of posting would have to be extended to more than 14 business days. I recall one application where the filing period had to be extended to 16 days, due to the particular calendar year and month in question which included several holidays during the weeekday periods.
Naturally, with so much ambiguity involved, many employers misunderstood, miscounted, miscalculated and misposted, so that their Applications for Alien Labor Certification were often denied because a weekend day or holiday, which had been included in the 10 day posting period, was held insufficient to meet the posting requirement, even if the employer was open for business during those days.
Sagacious Employers and their Attorneys always extended the posting, even if they were not claiming that business days occurred on the weekends and holidays, so as to avoid any difference of opinion with the SWA, or or the regional Certifying Officer.
The strict interpretation of the 10-day rule flew in the face of reality if, as in many industries, all the days of the week were business days. Ironically, in some businesses, postings would have had more exposure to stakeholders on weekends and holidays, since there were more employees working on those days than on regular workdays.
Irrational results often obtained, especially in the case of hospitals, tourism, and restaurants, where credit for posting was not honored except on weekdays.On October, 2010, in Matter of Il Castile Restaurant, 2010-PER-683, the Board of Alien Labor Certification Appeals disagreed with the Certifying Officer, who insisted that "business day" could only mean Monday through Friday. The case involved a chef who worked on weekends and holidays. Accordingly the Board defined "business day" in to normally mean Monday through Friday, except for Federal holidays, however, where an employer is open for business on a Saturday, Sunday, and/or holiday, the Board held that an employer may include the Saturday, Sunday and/or holiday in its count of the 10 consecutive business day period required for the posting of the Notice of Filing so long as the employer demonstrates that it was open for business on those days. Similarly, where an employer is not open for a normal business any day, Monday through Friday, the employer should not include any such days in its count of the 10 consecutive business day period required for the posting of the Notice of Filing.
The focus in the Il Castile Restaurant holding is not on the day of the week, but on the activities that occurred during that day. In the Board's words, "If the Notice of Filing is posted for ten consecutive days when employees are on the worksite and able to see the Notice of Filing, the purpose of the Notice of Filing requirement is fulfilled. As long as an employer has employees working on the premises on a Saturday, Sunday, or Holiday, those days are business days for the purposes of complying with the Notice of Filing posting."
Since the PERM Form 9089 only asks whether the Employer has posted for 10 business days, but does not ask which days or dates, the form does not enable DOL examiners to distinguish between applications that can needed to be posted 10 day weekdays or on other business days. Employers should expect to receive a request for audit or even a denial in such cases, and may need to file a response to the Audit or a Motion to Reconsider in response to the Denial, in order to provide documentation of proper posting.
Despite the Board's favorable decision, therefore, it is therefore recommended that Employers continue to post 14-15 days, or longer, to avoid the possibility of time-consuming audits or denials based on inadequate information regarding the employers' business activities in the PERM application.