A case out of Louisiana was released recently that highlights one key issue we see when working with janitorial services and home health care agencies (and any other businesses that involve employees traveling among local client sites). While Pediatric Associates of Acadiana involves a software engineer, the issue of local travel requirements came up. What was fatal in this case was that the ads they placed clearly stated that “Minor travel may be required for deploying, training and demonstrating the product at our locations in Lafayette, St. Martinville, Breaux Bridge, New Iberia, Carencro and Scott, LA.” However, these requirements were not listed on the PERM application and consequently the certification was denied.
In this particular case, the employer made two arguments to try and overcome the DOL’s initial denial. The first was that, since the travel was all within the same metropolitan area, it was not really “travel.” On a logical level, that’s hard to dispute. However, that is not the way the case law has come out and there’s a case that says the opposite, in fact. There, the statement “[o]ccasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights” constituted a travel requirement for the purposes of the PERM statute. (That’s from Riverwalk Education Foundation, 2012-PER-02882, if you need a cite). Again, I don’t think that makes a ton of sense, but that’s the law. The second – and far less compelling – argument made was that travel could have been inferred from the job duties. You might see a case where that’s true at some point, but this one was not going to be it (it involves a software engineer that appears to make record or billing programs for local doctors and the argument was that he’d have to go around and do demonstrations and trainings). So, not the strongest argument. But I thought the first one was pretty strong.
Anyway, travel like this is something we must be careful on when we are talking about locally-roving employees and it comes up at multiple steps in the process. First, it needs to be disclosed in the prevailing wage (twice – in the body of description text and in the dropdown menus at the end about multiple worksites). Then, it has to go in the ads, which is a pain because it’s an added cost due to increased text necessary. Finally, it has to go on the PERM. For janitorial and home health care agencies, my stock language is “Positions are based in [city], but involve daily travel to worksites within [descriptor – county, metro area, or specific area].”
Just another reminder to be as detailed as possible at all stages of this process to make sure all the necessary disclosures are being made.
We originally published this one here: https://www.permlabor.com/blog/even-local-travel-counts-as-travel