On October 19, 2021, the Department of Labor (DOL) and Department of Justice (DOJ) settled with Facebook over its alleged discrimination against U.S. workers relating to the manner it conducted recruitment under the permanent labor certification (PERM) process. Facebook settled with a $4.75 million penalty payment to the United States, making a payment up to $9.5 million to eligible victims of Facebook’s discrimination, and train its employees on the anti-discrimination requirements of the Immigration Reform and Control Act of 1986. It was also permitted to withdraw pending PERM applications and will pause its new filings for a 36- month period going forward to assure adherence to federal agency regulations.
Background
A permanent labor certification permits U.S. employers to sponsor a foreign worker in the United States and is the first step for the individual to secure permanent residence. The PERM process will result in a ‘certification’ of the application, representing that the U.S. employer has sought to locate the services of a qualified U.S. worker, but has failed to locate such an individual. It is the first hurdle to clear with federal agencies and allows the U.S. employer to thereafter file an immigrant petition with U.S. Citizenship and Immigration Services (USCIS) and further permits the foreign national to apply for permanent residence. The PERM process is a complicated, nuanced, and detailed one in which employers walk the fine line of complying with detailed federal recruitment and advertising requirements as set forth by the DOL and at the same time, assuring they do not run afoul of the DOJ’s anti-discrimination regulations.
What did Facebook do to be penalized by the DOJ and DOL?
In order to sponsor a foreign worker for a proposed in a U.S. company, the DOL, as designated by the U.S. Congress, has mandated that U.S. companies assure that they conduct a good faith test of the labor market to assure that no qualified U.S. workers who might qualify for the offered position are not disqualified. While U.S. companies are not ordered to hire such workers, they must, nonetheless, conduct a bona fide test through a variety of recruitment methods to assure that U.S. workers are not excluded from consideration for the positions that might be filled by foreign workers. The qualified U.S. worker should be given priority for consideration by the U.S. employer for the proffered position. Ironically, however, the U.S. company is not mandated to hire such an individual.
Facebook was charged with conducting PERM recruitment in a completely different manner than its general recruiting standards. Yet, the DOL recruiting requirements have not been updated in more than forty years. There is no doubt that as a result of this settlement agreement, we do expect to see the DOL recruitment requirements updated so they are timelier and more current. The internet did not exist when the regulations were promulgated, and no updates have been issued since that time.
The PERM recruitment process is arduous and complex. The DOL requires the employer to conduct recruitment in regional and local newspapers, radio, advertising with the State Workforce Agencies, and other general recruitment methods. The DOL accused Facebook of having two different standards of recruitment - that for general recruitment and another which adhered strictly to the U.S. Department of Labor standards with the result that the Department of Justice accused Facebook of discriminating against U.S. applicants.
What can employers do to adhere to PERM advertising requirements and avoid charges of discrimination against U.S. workers?
The lawsuits against Facebook charged it with utilizing recruitment methods designed to deter U.S. workers from applying for certain positions that resulted in its ability to hire only temporary visa holders in violation of the anti-discrimination provision of the Immigration and Nationality Act. The Immigration and Nationality Act prohibits employers from discriminating against workers because of their citizenship or immigration status.
In addition to adhering to the standard recruitment requirements set out by the DOL, employers should also consider posting job openings on its internal intranet and external websites in addition to the standard PERM recruitment procedures. As well, resumes that are submitted to U.S. employers as part of the PERM process that might be emailed or electronically delivered for job consideration should also be considered. U.S. workers whose resumes appear to be facially qualified should be considered for an interview, rather than dismissed out of hand. Any ambiguity expressed by an employer regarding the qualifications of the individual submitting such a resume should favor an interview.
The Facebook lawsuit is a sign that a long-overdue overhaul of the DOL’s recruitment requirements in the PERM process is not far off. Facebook was not accused of violating the recruitment process of DOL regulations; it was accused of discriminating against U.S. workers in spite of its compliance. It remains to be seen when the Department of Labor does issue up-to-date recruitment requirements.
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