One of the topics we touch on time and again is the conflicts between advertisement (or notice) text and what is listed on the PERM application, Form 9089. The recent Sprint Nextel Corp. decision provides a good real world example of the factors at play. In that case, the issue that arose was whether the employer was required to list that an employee in the position in question needed to pass a drug test and background check. The employer had listed it on the PERM application, but not in its advertisements and Notice of Filing.

Ultimately, the decision was that the application should have been approved and it was fine for the employer to miss that requirement in its ads and Notice of Filing. This builds upon a substantial amount of predecessor case law which, consistent with the regulations, states that ads need not contain every single, nitty-gritty detail of what a job entails - only that they need to be specific enough so as to apprise U.S. workers of the opportunity.

The decision of the Board was that the employer “provided a complete description of the job opportunity that was specific enough to apprise the U.S. workers of the job opportunity and its omission of a reference to background and drug screening did not in any way undermine that effort or render the NOF incomplete.”

The predecessor case I mentioned above is Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013), which I cannot link to (there’s a weird black hole between 2010 and 2015 when mostly decisions pick up again where only the en banc cases are posted). But in that case, the PERM form listed a Spanish language requirement that was not listed on the ads. The decision there was that the omission of the Spanish language requirement did not violate § 656.17(f)(3), as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.” The same was true in the Sprint Nextel case.

This topic overall is a bit of a tricky one for employers that do drug testing in particular (like trucking companies, for example, regularly have this issue come up) because it’s really hard to say exactly when or how this topic should be raised to domestic candidates. Do you put it in the ads? Do you mention it only after an offer is made? Based on that, what information do you enter in the various forms? These are all fact-specific situations that may vary from employer to employer based on their unique circumstances.

Originally published here: https://www.permlabor.com/blog/when-of-if-to-list-ancillary-requirements-background-check-drug-test-etc