Employers Must Notify Laid-Off Workers Before Hiring Foreign Workers

Roy Maurer By Roy Maurer May 17, 2017
Employers Must Notify Laid-Off Workers Before Hiring Foreign Workers

​Oracle America was denied labor certification for two foreign workers because it failed to adequately notify its qualified, recently laid-off employees about the job openings, the Board of Alien Labor Certification Appeals affirmed.

The board said that the Redwood City, Calif.-based computer company's separation notices to laid-off workers were insufficient because they did not provide specific and repeated notifications of job opportunities covered by the labor certification application, as specified by the Department of Labor (DOL). Instead, "the record shows that the employer issued a single separation notice to each laid-off worker with no follow-up," the board said.

In addition, it continued, the separation notices "were exactly the type of notification that the [DOL] expressly rejects—i.e., a notice that simply informs the laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings."

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The Case

In June 2013, Oracle filed applications to sponsor two foreign workers for permanent employment certification in the positions of software engineer and IT manager. Responding to a query from the DOL, the company said it had laid off workers within the past six months who held the same or similar positions and who worked in the same area where it intended to employ the foreign workers.

The DOL's certifying officer notified Oracle in February 2014 that its applications were being audited. The audit notification letters requested the company to submit documentation of its recruitment efforts—including a recruitment report—specifying information identifying laid-off workers in those positions within the last six months and efforts to notify and consider them for the jobs.

Oracle responded that four workers had been laid off from related positions in the six months at issue and that none of them had "applied for positions in the subject occupations since termination." Regarding the steps taken to notify and consider laid-off workers for the job opportunities, Oracle stated that "all laid-off U.S. workers are given a notice in their termination packet that provides them with instructions on how to view and apply to any and all labor certification job opportunities that Oracle America, Inc. is offering, including the above-referenced job opportunity."

The DOL denied certification in December 2014, citing Oracle's notification as inadequate. "Providing information to the laid-off worker prior to his/her termination on how to apply to 'new job opportunities' and relying on the laid-off worker to act on this information does not satisfy the regulatory requirements," the DOL said.

The certifying officer further stated that the notice provided by Oracle in its termination packets made no reference to specific job opportunities and instead "required the employee to take action to regularly visit the site in order to find such jobs. Contrary to the understanding of the employer, the satisfying of the regulatory standard is the sole responsibility of the employer and not that of the laid-off U.S. worker."

Oracle didn't challenge the DOL's finding that it did not provide specific notice of the job opportunities to the laid-off workers, but the company argued that it complied with the DOL's alternative notification requirements for employers filing multiple labor certification applications.

Under the alternative notification requirements, an employer must notify each laid-off worker—in the manner chosen by the worker—at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer.

The board ultimately found that Oracle also failed to comply with the alternative notification requirements because notifications were not provided in "the manner chosen by the worker," nor were they offered at least once a month.

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