The settlement with Facebook sheds light on how to steer clear of DOJ enforcement actions in the PERM process. The bottom-line and important do’s and don’ts are explained below.
Introduction
On October 19, 2021, DOJ and DOL announced settlement agreements with Facebook. “Under the DOJ settlement, Facebook will pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the anti-discrimination requirements of the INA,” according to a joint DOJ-DOL press release. “Today’s civil penalty and backpay fund represent the largest fine and monetary award that the Division ever has recovered in the 35-year history of the INA’s [Immigration and Nationality Act’s] anti-discrimination provision…. No matter an employer’s size or reach, the Department of Labor is committed to vigorously enforcing the law.”
Indeed, there is no evidence that Facebook violated the Department of Labor’s PERM regulations for sponsoring employment-based immigrants. DOJ admitted in its complaint that Facebook does not pre-determine the ultimate candidate to be hired based on their citizenship or immigration status. Nonetheless, the settlement agreement in the U.S. worker discrimination lawsuit between the DOJ and Facebook signals a shift in U.S. government enforcement standards that should cause many companies to assess their PERM practices.
PERM is complex. In fact, a typical book published that explains how businesses must comply with DOL labor certification requirements is nearly 900 pages and weighs close to 7 pounds. However, the DOL initiated audit examinations of Facebook’s pending PERM applications, the lawsuit, and the settlement, sheds light on important considerations on how to avoid potential non-compliance enforcement actions by the DOJ.
Bottom-line – Good Faith Recruitment Requires Adhering to Company’s Standard Recruiting and Hiring Practices
Ensure that your company’s recruitment for PERM positions closely matches its standard recruitment practices.
The lawsuit alleged that, in contrast to its standard recruitment practices, Facebook used recruiting methods designed to deter U.S. workers from applying to certain positions that amounted to refusing to consider U.S. workers who applied to the positions and hiring only temporary visa holders in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA). The INA generally prohibits employers from discriminating against workers because of their citizenship or immigration status.
Adhering to your company’s normal recruitment processes will help ensure you stay clear of such discrimination against workers because of their citizenship or immigration status. This is called good faith recruitment.
Good Faith Recruitment - Do’s and Don’ts per the Lawsuit and Subsequent Settlement
- Steer Clear of Requiring Applications to be Submitted by Mail Only
Specifically, the lawsuit alleged that, in contrast to its standard recruitment practices, Facebook used recruiting methods designed to deter U.S. workers from applying to certain positions, such as requiring applications to be submitted by mail only in contrast to their standard employment practices. DOJ claimed Facebook deterred U.S. workers by requiring applications to be submitted via mail.
Although, the Department of Labor established the PERM process without a requirement to provide an electronic resume response option for applying to the DOL-mandated advertisements, Facebook will be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps.
The settlement also makes it clear that requiring applicants to apply by mail is, at best, not a mechanism the government wants employers to use. To the extent that employers are not currently accepting applications electronically at this point, continuing to require mailed-in applications does seem more risky in light of this settlement.
- Post All PERM-Related Positions on Company’s Career Website
As part of the settlement, Facebook agreed to take certain approaches relating to its PERM labor market tests that really aren’t required by the plain language of the PERM regulations. This includes posting all PERM-related positions on its internal intranet and external website.
Indeed, the PERM regulations are very clear that posting on the company’s Careers website is an optional form of recruitment rather than being mandatory. The settlement makes it mandatory for Facebook.
Companies will need to give thought to whether to prioritize posting on a Career website over some of the other recruitment options that the PERM regulations clearly provide, particularly if other job postings are done by the company on its intranet and external website.
- Interview Facially Qualified Candidates
If a U.S. worker applies, that person should be treated like any other recruitment process. However, great care should be given to interview those candidates that appear facially qualified based on their resume. Any ambiguity should favor an interview.
- Consider U.S. Workers who Applied for the Positions
Companies should generally avoid designing a recruitment process that:
(a) Deters U.S. workers from applying for the advertised positions;
(b) Does not consider U.S. workers for the advertised positions; and
(c) Reserves only temporary visa holders for the advertised positions.
U.S. workers may not be disqualified because of their immigration or citizenship status by limiting their ability to apply, to be considered, and to be hired for all PERM-related jobs at the company.
Background
A permanent labor certification (PERM) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain a certified labor certification application from OFLC. The Secretary of Labor must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
“There are more than 1.2 million unique active job vacancy postings in computer occupations in the United States as of September 6, 2021, up 15% from 6 months earlier,” based on data from Emsi Job Posting Analytics, according to an NFAP analysis. “The data point to a significant talent gap in the United States between the demand for high-skilled technical labor and the ability of the U.S. labor force to fill that demand.”
For questions, please contact Peter F. Asaad, Esq. at pasaad@potomaclaw.com.
Note: This bulletin is for general use and should not be construed to provide legal advice as to particular factual situations.
