Two recent developments involving the U.S. Department of Justice's Civil Rights Division ("DOJ") highlight potential risks and opportunities for companies facing immigration-related employment matters.
DOJ can pursue claims alleging that an employer has discriminated against U.S. citizens and other protected workers under 8 U.S.C. § 1324b through investigations and by filing class action-style lawsuits. Both DOJ and private individuals may file suit, and all 1324b litigation occurs before an administrative law judge ("ALJ") in the Office of the Chief Administrative Hearing Officer ("OCAHO") with review in the U.S. courts of appeals.
First, on November 8, 2023, a federal court ruled that the OCAHO scheme violates the Constitution's Appointments Clause because under Congress's 1324b scheme, ALJ decisions are not reviewed by a "principal officer," such as the attorney general. See SpaceX v. Bell, et al., No. 1:23-cv-00137 (S.D. Tex.). Recently, DOJ had implemented a new rule interpreting Section 1324b to allow the attorney general to review ALJ final orders. But the court decided DOJ's new rule "conflicts with the plain language of § 1324b, which only provides for review" in a court of appeals. As such, SpaceX obtained a preliminary injunction stopping DOJ's OCAHO case against it.
Second, the next day, the DOJ announced what it described as a "landmark" settlement resolving allegations that Apple Inc. discriminated against protected workers under the permanent labor certification program ("PERM"). DOJ alleged Apple deviated from its standard employment practices to dissuade protected workers from applying to PERM jobs. This $25 million settlement involved similar claims to those resolved in a 2021 settlement alleging another company had used the PERM program to sponsor H-1B visa holders for green cards at the expense of protected workers.
These two developments have cross-cutting significance for employers. On the one hand, the settlement illustrates intensifying government enforcement under 1324b. On the other hand, if not overturned on appeal by the Fifth Circuit or Supreme Court, the Appointments-Clause challenge could leave DOJ without any viable mechanism to enforce 1324b. Companies facing investigations or lawsuits under 1324b should consider raising similar objections and may wish to bring suit to seek similar injunctions if DOJ threatens or brings an OCAHO case.