More news about the impact of Covid-19 on immigration: https://www.jackson-hertogs.com/employer-resources/covid-19-immigration-impacts/
Electronic Posting Options
In response to the novel coronavirus crisis, many employers have transitioned to a work from home period either out of precaution or due to a “shelter in place” orders by local health authorities. Meanwhile, DOL regulations remain unchanged that employees at a worksite must be notified of an employer’s intent to file a Labor Condition Application (LCA or Form ETA9035) with DOL. For more background on LCAs see:
Fortunately, DOL allows for physical or electronic notice of LCA postings (there is no similar provision for electronic only posting of PERM posting notices).
DOL requires that employers with no collective bargaining agreement must provide notice to employees in the occupational classification at the place of employment, either via
- two conspicuous locations at the place of employment, or
- electronic notice.
Electronic notice can mean any one of different media, such as
- posting to intranet
- sending via email
- posting to the company’s website
- circulating via company newsletter
The challenge with electronic postings is that DOL rules require notice be provided not only to company employees, but also to employees of any company that might own or operate the place of employment. (For example, if the H-1B petitioner is a contractor, the petitioner should post the LCA notice on its customer’s intranet, accessible to any affected employees).
In situations where an intranet is not accessible to all employees working remotely, including employees of another entity at the place of employment, employers may still send notice via email or by posting the notice on the employer’s website.
In the case of intranet/internet posting, the posting must be available for a total of 10 days. However, when distributing individual LCA notices via email, notice needs only be given one time (DOL regulations provide an example of a single, personal email to each employee, and do not address whether alternative options such as a group bcc are acceptable).
In March 2019, DOL provided additional guidance on electronic postings to emphasize that employers opting for electronic notice must ensure that all affected workers, including those at the worksite employed by a third-party, have access to, and are aware of, the electronic LCA notification. Compliance with electronic LCA posting requires that affected workers have both the necessary permissions, and knowledge of the electronic resource:
https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2019_3.pdf
Where employees of a third-party employer lack permission and/or knowledge of the electronic resource, options include:
- emailing all affected workers,
- posting a link to the electronic notice on the third-party employer’s intranet site, or
- posting notice on the employer’s public website.
The point is that affected workers at a third-party worksite must also be made aware of the LCA posting notice and H-1B sponsors must make clear to all workers which LCA posting notice applies to their worksite.
In a FAQ issued in response to many employers’ transition to a work from home period, the DOL reiterated this guidance on electronic posting on March 2.
The FAQ is available at: https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf (question 5).
Home Worksites
If the employee has a new worksite (such as a home office) that is within the “area of intended employment” of the existing LCA, a new LCA is not required to be filed. However, DOL requires employers to post (either electronic or hard-copy) notice at the new worksite. For more background on the definition of the area of intended employment, see: https://www.jackson-hertogs.com/jh/N8126.pdf and https://www.jackson-hertogs.com/changes-in-the-work-site-location-require-action-before-the-change-happens/.
While DOL stated in a stakeholder meeting in 2017 that it does not expect employees to post notices at their homes, DOL regulations have not been changed to allow this exception. Notably, in itsFAQ issued on March 20, 2020, the DOL announced that if an employee’s worksite has changed during COVID-19, there are no material changes to the terms of the H-1B employment, and the worksite is within the same area of intended employment, notice should be posted “as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite location”. This is an accommodation that is more flexible than the regulatory language, which requires that posting occur on or before the placement at the new worksite.
DOL’s guidance is available at: https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf (question 4).
In situations where the new worksite is not within the same area of intended employment, a new LCA posting notice and filing and H-1B petition filing is required, unless the arrangement falls under DOL’s “short term placement” rule.
Short Term Placement Rule
This rule is for situations where an H-1B/E-3/H-1B1 worker is temporarily moved to a new place of employment that is neither listed on the approved LCA, nor exists within the area of intended employment. The short term placement rule helps avoid the need to post and file a new LCA (and file an amended H-1B visa petition) for certain work-from-home situations.
Among other requirements, DOL requires employer to pay the worker’s actual cost of lodging, travel, meals and expenses. Further, the placement cannot exceed 30 workdays in a one-year period, or 60 workdays in a one-year period. If those conditions are met, the no new LCA will be required, if the employer can also show the worker:
- maintains an office/work station at their permanent worksite
- spends a substantial amount of time at the permanent worksite, and
- has a US residence in the area of the permanent worksite.
An outline of the DOL requirements for short term placement is available on the DOL “Fact Sheet” at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62K.pdf
