Potential Changes to PERM Recruitment Processes following Facebook Settlement

Written by Stephen A. Blaker

On October 20, 2021, the U.S. Departments of Labor (DOL) and Justice (DOJ) announced separate settlement agreements with Facebook in connection with the company’s PERM labor certification applications. The PERM labor certification program allows companies like Facebook to provide sponsorship for the company’s employees seeking permanent resident status (“green card”) in the United States. This application process requires the U.S. employer to test the U.S. labor market by conducting advertising to determine if there are qualified U.S. workers for the PERM position. DOJ alleged that Facebook had discriminated against U.S. workers, including U.S. citizens, U.S. nationals, asylees, refugees, and lawful permanent residents in the company’s PERM recruitment process based on those applicants’ citizenship status and was therefore in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA). The DOJ alleged that Facebook routinely reserved jobs for foreign nationals throughout the PERM process and thereby discriminated against U.S. workers and qualified applicants for these positions by deterring their applications. Furthermore, the DOJ alleged that Facebook refused to consider U.S. workers who applied to positions and hired only temporary visa holders for positions which were part of the company’s PERM program.

DOL alleged that Facebook had violated PERM regulations by bifurcating the company’s normal recruitment process from its PERM recruitment process. PERM labor certification regulations were created by the Department of Labor and require that employers recruit for positions they plan to offer to foreign nationals as part of the foreign national’s green card sponsorship. These DOL regulations require that employers test the U.S. labor market by placing advertisements and showing that no U.S. worker is available and qualified for the position. In their suits against Facebook, DOJ and DOL alleged that Facebook did not offer employment to qualified U.S. workers nor did Facebook comply with the DOL’s recruitment regulations in the PERM process. As part of its PERM recruitment, Facebook required applicants for PERM positions to apply via mail rather than via electronic methods; for positions which were not part of the company’s PERM program, Facebook allowed applicants to apply via electronic methods. DOJ alleged that Facebook used this distinct recruitment method to deter U.S. workers who applied to the positions which were being advertised as part of the company’s PERM program and therefore did not comply with federal civil rights laws.

While Facebook did not admit to any wrongdoing as part of the settlement, the company was assessed fines up to $13.75 million consisting of a civil penalty of $4.75 million and up to $9.5 million to eligible victims of Facebook’s alleged discrimination.  These fines are the largest monetary award that the DOJ’s Civil Rights Division has ever recovered under the INA’s anti-discrimination provision. Facebook will also be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, including accepting electronic resumes/applications and training its employees on anti-discrimination provisions.  The government will also require Facebook to add applicants to a PERM related job posting to an internal database they maintain for future openings, as that is the company’s standard operating procedure.

This settlement indicates that DOJ and DOL’s interpretation and enforcement of the statute and regulations have significantly changed. Furthermore, the settlement with DOJ is a reminder that discrimination against U.S. citizens or other U.S. workers is may invite serious government scrutiny, including potential lawsuits.  Employers should closely review their internal PERM recruitment procedures and require they mirror their regular recruitment procedures to the highest degree possible.  Please reach out to your contact within MSK to discuss your company’s next steps or if you have any questions.

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