Last week, the U.S. Department of Justice and Facebook settled a U.S. worker discrimination lawsuit involving the recruitment practices of the social media giant in its sponsorship of foreign workers for permanent residence. At the same time, the U.S. Department of Labor entered into a separate agreement with Facebook that will require the company to conduct additional recruitment steps and agree to additional agency oversight in the permanent residence process. In total, the company agreed to pay penalties of over $14.25 million.
This article explains the impact of those agreements on the permanent labor certification process for other employers in the United States.
What is PERM?
In order to appreciate the impact of these settlements, it helps to understand the permanent residence process. Essentially, the PERM—or Program Electronic Review Management—requires the employer to show that it is unable to find a qualified, willing, able, and available U.S. worker for a position before sponsoring a foreign-born worker to work permanently in that position. Specifically, the PERM program requires an attestation from the employer that
(1) it will pay its foreign workers least 100% of the prevailing wage for the position it offers, and
(2) it will recruit and make the position available to all qualified, willing, able, and available U.S. workers.
The suit alleges that Facebook engaged in unfair recruitment practices based on citizenship status when conducting recruitment steps required by the PERM process. It is important to mention that the settlement is not an admission of wrongdoing; in fact, Facebook seemingly followed all of the regulatory guidelines when conducting its recruitment. This is what makes the settlement so alarming.
Potential Impact on Immigration
- The discrimination charges are somewhat troubling as they impose additional requirements beyond the recruitment requirements outlined by the DOL that employers traditionally rely upon when conducting PERM recruitment.
- The lawsuit was initiated during the Trump Administration and continued under the Biden Administration. The decision to continue pursuing the litigation could indicate a stronger administrative stance against foreign recruitment practices. The decision could also show that employers conducting recruitment for PERM applications could be subject to stricter scrutiny from various government agencies, based on bipartisan political pressure to protect U.S. workers – especially U.S. workers in the tech industry.
- The focus on litigation rather than regulatory reform could signal that the outdated PERM recruiting practices may not be going away anytime soon. There is no doubt the PERM regulations need updating (for example, they require the employer to advertise its positions in two Sunday editions of the newspaper – a practice most employers consider to be obsolete).
Best Practices in PERM-Related Recruitment
In light of the Facebook settlements, employers should consider several recruitment practices when conducting PERM applications moving forward. Below are a few of the primary considerations.
- Employers should retain adequate documentation to show that they made good faith efforts to find qualified U.S. workers for the position. This includes ensuring that instructions for submitting applications for open positions are consistent for all applicants and across all job openings, providing requisition numbers on job postings to best track applications.
- Employers should document their reasons for disqualifying U.S. workers. It is crucial the employer prove that a U.S. worker was disqualified for a legitimate business reason. If audited or investigated later, the employer must be able to show their reasoning for denying an application.
- To the extent possible, recruitment practices and company job descriptions for PERM recruitment should align with standard company practices.
While it is too early to analyze the ramifications of this settlement fully, the settlement itself serves as an important reminder that there are many pitfalls to be aware of in the PERM process. It is also important to note that it is insufficient to merely follow recruitment regulations set forth by the DOL. Rather, employers must also conduct recruitment in good faith to avoid any inference of discrimination.
Our immigration team is well versed in PERM practices, and we are happy to work with all employers who have questions on how to comply with the various PERM requirements. Do not hesitate to contact Nilan Johnson Lewis if you have any questions.