Facebook Settlement with DOJ and DOL Highlights Best Practices for Employers
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DOJ & DOL Highlights: Facebook has entered into two separate settlement agreements with the U.S. Department of Justice (DOJ) and the U.S. Division of Labor (DOL) following allegations that the organization oppressed U.S. workers with the PERM labor certification process. As per the conditions 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 didn’t observe that Facebook violated any guidelines relating to proper recruitment. Under the PERM program, the settlement nonetheless shows that, when conducting “great faith” recruitment for PERM applications, U.S. employers should also consider their standard recruitment processes.
DOJ & DOL Highlights | Background
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 specific jobs based on citizenship status by preferring international workers over qualified, available U.S. workers. The claim specifically alleged that Facebook deviated from its normal course of recruitment processes and followed disparate procedures in the PERM recruitment processes 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. Furthermore, Facebook agreed to adhere to specific recruitment requirements in connection with PERM applications to guarantee each PERM job opportunity is 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 guidelines. This settlement gives a warning to employers to consider their own normal recruiting efforts. When conducting good faith recruitment for a PERM position. While employers should guarantee they are following the recruitment efforts specified by the DOL, this may not be sufficient.
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For example, Facebook had been requiring candidates for PERM positions to apply via mail. The DOL normally allows this. However, for non-PERM positions, Facebook was also accepting applications submitted via eMail or through the company’s site. The DOJ and DOL asserted that this, among different actions taken by Facebook. Also proved that the company was discriminating against U.S. workers for PERM positions. So, 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.
Conclusion
A more effective way for the DOL to address how employers recruit for PERM positions. It would be to update its recruitment requirements to be in line with the realities of modern-day recruiting 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.
