Employers looking to hire foreign employees into so-called “specialty occupations” through the H1-B visa program are required to notify certain domestic workers at the time, or within 30 days before, they file the Labor Condition Application (“LCA”) with the U.S. Department of Labor. The notice is thought to protect domestic employees because it includes detailed information about the employer’s intentions, including the number of non-immigrant foreigners the employer is seeking to hire, the job classifications in which those workers will be employed, the wages they have been offered, the time period of their employment, as well as information about their right to file a complaint with the DOL if they suspect that the employer has misrepresented materials facts in or failed to comply with the LCA.
When the foreign employees will not be part of a collective bargaining unit, employers are allowed to provide the mandatory notice to the affected employees by electronic means – either by direct e-mail or by any other electronic means the employer “ordinarily uses to communicate with its workers about job vacancies or promotion opportunities,” such as a home page, electronic bulletin board or digital newsletter, as long as the affected employee have direct access to those resources. Importantly, however, employers must provide notice not just to their own employees, but to all affected workers, including the employees of any third-parties who own or operate the place of employment. And employers probably don’t have ready means of communicating with those workers electronically.
In most cases, an employer faced with this dilemma might avoid the problem altogether by posting traditional paper notice (in at least two conspicuous locations at each affected worksite), which is also permissible under the regulations. But employers who prefer to give notice electronically should take heed of new guidance published by the DOL.
In a recent Field Assistance Bulletin (“FAB”), the DOL reiterated that employers “must ensure that all affected workers, including those employed by a third-party, have access to, and are aware of, the electronic notification.” The electronic notice itself, moreover, must be “as effective as hard copy posting,” meaning that the employer must make it “readily available, as a practical matter, to all affected employees.”
What does that mean? According to the DOL, it means that the affected workers “must be capable of accessing the electronic notification” and must have “knowledge of the electronic resource where the notice is posted.” As a result, electronic notice is automatically insufficient if it is posted in an electronic location that is not known to or used by the affected employees of a third party. Even if those workers can visit the location, the notice is not readily accessible to them if they do not know to go there. Further, employers that are required to make several notifications at several worksites may do so on their public website, but they must ensure that all affected workers are able to determine which notice applies to their worksite and they must inform the affected workers of any third-party of the location of the notice, post a link on the third-party’s intranet site or e-mail the link to those workers. Apart from these few examples, the FAB puts the burden on the employer to determine the method or methods of providing notice that are “most prudent for its business.”
With the 2019 application window opening in less than two weeks (April 1), employers who will be filing applications should give careful consideration to the means by which they have notified, or will be notifying, affected workers. When in doubt, call on your employment attorney for advice tailored to your specific situation.