Facebook Settlement with DOJ and DOL Highlights Best Practices for Employers08 Dec 2021
Facebook has entered into two separate settlement agreements with the U.S. Department of Justice (DOJ) and the U.S. Department of Labor (DOL) following allegations that the company discriminated against U.S. workers with the PERM labor certification process. In accordance with the terms of the settlement, Facebook will pay a civil penalty of $4.75 million and up to $9.5 million to eligible victims, conduct more expansive recruitment for its PERM positions, and train its employees on the antidiscrimination requirements of the Immigration and Nationality Act (INA). While the DOL did not find that Facebook violated any regulations relating to proper recruitment under the PERM program, the settlement nonetheless shows that, when conducting “good faith” recruitment for PERM applications, U.S. employers should also consider their standard recruitment processes.
In December 2020, the DOJ filed a lawsuit against Facebook alleging that Facebook engaged in a pattern or practice of discriminatory recruitment and hiring for certain jobs based on citizenship status by preferring international workers over qualified, available U.S. workers. The lawsuit specifically alleged that Facebook deviated from its normal course of recruitment processes and followed disparate procedures in the PERM recruitment process to favor the temporary visa employee and deter eligible U.S. workers.
Although Facebook denied the DOJ allegations, it settled with the DOJ to pay a $4,750,000 civil penalty and $9,500,000 to qualified U.S. workers who allegedly suffered damages from the discriminatory treatment in the PERM recruitment. Additionally, Facebook agreed to adhere to certain recruitment requirements in connection with PERM applications to ensure every PERM job opportunity is clearly open to U.S. workers.
Future Implications of DOL Settlement Agreement
While the DOL did not find that Facebook violated any of the controlling PERM regulations, this settlement provides a warning to employers to consider their own normal recruiting efforts when conducting good faith recruitment for a PERM position. While employers must ensure they are following the recruitment efforts specified by the DOL, this may not be sufficient.
For instance, Facebook had been requiring applicants for PERM positions to apply by mail. The DOL normally allows this. However, for non-PERM positions, Facebook was also accepting applications submitted via eMail or through the company’s website. The DOJ and DOL asserted that this, among other actions taken by Facebook, evidenced that the company was discriminating against U.S. workers for PERM positions. In short, one can infer from the investigation and settlement agreement that an employer should use substantially similar recruitment efforts for PERM positions as it uses for comparable non-PERM positions.
A more effective way for the DOL to address how employers recruit for PERM positions would be to update its recruitment requirements to be in line with the realities of modern-day hiring practices. Until then, however, this investigation and settlement agreement should be viewed as a warning to employers that following the stated PERM recruitment guidelines and regulations may not be sufficient.
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