Facebook, Inc. and the United States Department of Justice entered into a settlement agreement on October 19, 2021. The agreement relates to allegations that Facebook has discriminated against U.S. workers by preferring visa workers for certain jobs over qualified, available U.S. workers in the PERM labor certification process. If true, that practice is a clear violation of the Anti-Discrimination Provision of the Immigration and Nationality Act.
What is the Anti-Discrimination Provision?
The Anti-Discrimination Provision of the INA protects U.S. citizens as well as lawful aliens against discriminatory hiring practices. Employers cannot discriminate against protected individuals, like U.S. citizens. Here, the Department of Justice alleges that Facebook failed to perform the required recruiting and hiring processes and thus failed to properly consider U.S. workers for the PERM-related positions that Facebook posted on their jobsite.
The PERM Process
When a visa worker is given a permanent job offer by their U.S. employer, there are several steps that the employer must take. These steps exist to protect the American workforce. Essentially, the employer must show “there are not sufficient workers who are able, willing, [and] qualified” to perform the permanent job that the foreign national was offered. Importantly, the “burden of proof is on the petitioning employer” to show that there are insufficient U.S. citizens to fill that position.
The employer must attest that the permanent job offered to the foreign national has been held “clearly open to any U.S. worker” and any U.S. citizen applicants have been “rejected only for lawful, job-related reasons.” This is evidenced through mandatory recruiting efforts that employers must take. If the employer fails to show that they have held open the job to U.S. workers, either through a lack of evidence of recruiting efforts or failing to actually recruit, then they risk violating the Anti-Discrimination Provision of the INA.
What did Facebook do Wrong?
The DOJ alleges that Facebook failed to follow the necessary recruiting steps to hold the job open to U.S. workers and instead followed different procedures designed to favor the temporary visa holder and deter U.S. workers. Facebook agreed to pay $4.75 million to the U.S. Treasury as civil penalties and $9.5 million to a Settlement Fund for U.S. workers. The settlement terms agreed to by Facebook and the DOJ are the largest civil penalty in INA history.
Facebook also agreed to implement several measures to prevent similar allegations in the future. All PERM-related positions will be given a number associated with a job profile group, all PERM-related positions are to be posted on Facebook’s Careers website without indicating they are related to a PERM filing, electronic applications will be accepted for PERM-related positions just as they would be for other roles listed, as well as other steps to encourage qualified U.S. workers to apply. Further, Facebook is required to provide recruitment reports to the DOJ as well as enhanced training for required employees.
The settlement between Facebook and the DOJ highlights the importance of following the regulatory requirements of the permanent labor certification process. If regulatory requirements are not strictly adhered to during the PERM process, organizations risk facing similar allegations.