DOL Offers Guidance on Recruitment for Telecommuting Positions

From USADNEWS Volume XV, Issue 1

As remote work and telecommuting options become more common in the workplace, employers face additional challenges in determining the appropriate recruitment methods when conducting the required advertising for labor certification applications.

The regulations at 20 C.F.R. § 656.17(e)(1) require that an employer place both a job order with the State Workforce area serving the area of intended employment as well as an advertisement in two Sunday editions of a newspaper of general circulation in the area of intended employment. But what is considered the area of employment when an employer permits telecommuting anywhere in the country?

The Department of Labor (DOL) addressed this question during an Open Forum at the American Immigration Lawyers Association (AILA) Annual Conference this past summer.

The DOL confirmed that employers should use their headquarters as the filing address and primary worksite for recruitment advertising purposes for any situation involving telecommuting, teleworking, and/or traveling. The DOL cited the Barbara Farmer Memo of 1994, which addresses the use of unanticipated worksites, as the source for this guidance.

Where employees work from home, the home address should not be listed as their worksite. Neither a P.O. box nor private mailbox is acceptable as a worksite address.

AILA posed a hypothetical fact pattern during the Open Forum to clarify the guidance. According to the example (AILA Doc. No. 22072000), if an Illinois employer with no worksites in Texas advertises for a position that permits telecommuting from the state of Texas, would the employer be required to advertise out of Texas or Illinois?

The DOL confirmed that the employer should use the company headquarters in Illinois as the worksite and conduct all recruitment advertising out of that location because the employer does not have any offices in Texas.

This guidance is useful to bear in mind when selecting the appropriate recruitment media for a labor certification application where the foreign national will be working remotely from a state where the employer has no offices or employees.

Oftentimes, State Workforce Agencies will not even permit employers to register on their job bank sites if they do not have physical offices in the state and an existing state tax ID. In these cases, the DOL guidance to use the employer’s headquarters as the job location address makes practical sense for the purposes of registering and posting the SWA job order.