Murthy Success: PERM Posting & Meaning of “Business Day”23 Jul 2010
A question has been raised with regard to whether the requirement to post a notice for ten consecutive business days was met in a PERM labor certification case. At issue was whether Columbus Day should be counted as a business day. For the U.S. Department of Labor (DOL) and the rest of the Federal Government, it is a holiday; for most other employers, however, it is an ordinary working day. While this article describes one particular case, it is not an isolated incident. Through the generosity of this client of our firm, this case is shared so that MurthyDotCom and MurthyBulletin readers may benefit. No client information or case details are ever shared without a client’s permission. We appreciate the opportunity to publish some of our more interesting cases for our many readers.
DOL: Notice Not Posted for Ten Consecutive Business Days
As part of the PERM labor certification process, the DOL requires a sponsoring employer to post notification regarding the filing of a labor certification for ten consecutive business days. The purpose is to notify employees of their employer’s intention to file the labor certification case. The posting is intended to provide a meaningful opportunity for U.S. workers to compete for the position and to assure that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of foreign nationals.
The posting notice at issue contained all the language and information required by DOL regulations. The manner in which the notice was posted was also correct. The DOL did not dispute this. The DOL took issue, however, with the duration of the posting. One of the days included in the ten consecutive business days of posting was Columbus Day, which is a federal holiday. The DOL initially found that the posting notice had not been posted for the required amount of time and, on that basis, denied the PERM labor certification case.
Murthy Law Firm Challenged DOL Decision
This was a serious problem for the employer and beneficiary, as the DOL had taken over two years to issue a decision in the PERM case. Thus, any re-filing of the case would have meant losing the priority date that was more than two years old, as well as a great deal of additional expense and effort. We appealed the decision, and received an approval of the PERM labor certification case.
DOL Has No Definition of “Business Day”
The DOL regulations require posting such a notice for ten consecutive business days, but the DOL has no regulation defining the term “business day.” The Murthy Law Firm argued that the decision was wrong, as the employer treats Columbus Day as an ordinary business day. The employer was open and engaging in business on the Columbus Day in question. Thus, the notice WAS in fact posted for ten consecutive business days. We argued that the DOL’s determination that Columbus Day is not a business day was unsupported, not appropriate to employer’s business nor consistent with the purpose of the notice requirement. The purpose of the notice is to alert employees of the petitioning business, and that purpose was accomplished.
Murthy Successfully Argues Columbus Day is Business Day
Since there is no regulatory definition of the term business day, attorneys at the Murthy Law Firm turned to other sources to support the proposition that, in this situation, Columbus Day is a business day. We referenced the common understanding of the term, and other recognized definitions. The common understanding of the term applied by the petitioning employer was that a business day was one in which a company was engaged in normal business activities. We provided proof that this company was open and engaged in regular business on the day in question.
We used dictionary definitions, including Black’s Law Dictionary. The term is defined there as a “day that most institutions are open for business, usually a day on which banks and major stock exchanges are open, excluding Saturdays and Sundays.” We provided proof that Columbus Day is not a universally observed holiday in the U.S. business community. We established that it is an ordinary business day for the New York Stock Exchange, some banks, schools, local and state government offices, and many businesses.
We also found case law in a different context wherein the term “non-business” was at issue in a federal case. In that case, the court decided that, without a regulatory definition of “non-business” day, the term meant any day that the employer was not engaged in normal business activities.
Murthy Argues PERM Approvable, Despite Issues
As an additional argument in support of this case, the Murthy Law Firm asked the DOL to approve the labor certification even if it found that the notice had not been posted for the complete ten-day period. We asked the DOL, in that event, to classify this matter as a technical violation and what is known as a harmless error.
The DOL has some discretion to overlook technical violations of posting notice requirements. There is case law, as well as DOL guidance supporting the concept that such violations can be overlooked if the purposes of the posting regulations were served despite any technical error in the posting notice. The DOL can accept posting notices that substantially comply with the regulations, if the deficiencies in the notice did not prevent or discourage prospective applicants from applying for the position. We argued that this was appropriate, as clearly the employer was not trying to avoid compliance.
In response to this case, as well as others that presented similar issues, the DOL released an FAQ on August 3, 2010, setting forth the DOL definition of business day. This definition limits the term to Monday through Friday, except for Federal holidays. Thus, it is important to take note of even minor Federal holidays, which, for many, are ordinary work days.
The DOL approved the PERM case in response to our persistence in outlining case law, our pointing out relevant factual issues to help the DOL reconsider its decision, and our arguments based on the employer’s good faith. As a precaution, it is better to post notices for an extra day and not count even minor federal holidays within the ten-day requirement. If the federal holiday was overlooked when posting the notice, then one can make the best arguments, as explained in this article, in an attempt to win the case.
Copyright © 2010, MURTHY LAW FIRM. All Rights Reserved