What’s Happening
Following a two-year investigation into Facebook’s practices, on December 3rd, 2020, The Department of Justice, Immigrant and Employee Rights Section (IER), filed a Complaint against Facebook alleging that the company knowingly and intentionally engaged in a pattern of discrimination against U.S. workers. The Complaint charges Facebook with discrimination based on citizenship or immigration status resulting from the way the company structured and carried out its recruitment practices related to the PERM labor certification process.
The IER alleges that Facebook essentially had two separate and distinct recruiting practices, their “normal” recruiting practice and their PERM recruiting practice, and that in structuring these two practices the company set up a recruitment and hiring program that denied qualified U.S. workers an opportunity to learn about or be considered for certain positions at Facebook which were, instead, set aside to be filled by temporary visa holders that Facebook wanted to sponsor for a green card.
In the Complaint, the IER compared Facebook’s “normal” recruiting practices with their PERM recruiting practices, noting that during “normal” recruitment Facebook would:
Advertise vacancies on the company’s external website
Permit applicants to apply via the website portal by completing an applicant profile and uploading their CV
Enable existing employees to view job vacancies on company’s intranet and permit them to apply for these open positions electronically with the company (filling out a template expressing their interest and uploading documents)
The IER contrasted this with the company’s recruitment practices under the PERM Labor Certification program, wherein Facebook allegedly:
Would not advertise PERM positions on external website
Did not accept applications through their website portal but instead required interested applicants to apply by mail
Placed two advertisements in the Sunday editions of the San Francisco Chronicle (required by PERM regulations)
Placed a “job order” (job posting) on the California state job bank for a minimum of 30 days (required by PERM regulations)
Posted a physical notice in their office notifying employees of the position opening for 10 business days (required by PERM regulations)
Ran additional advertisements in a professional journal, a job search website, and in local newspaper
The complaint also noted that Facebook automatically initiated the PERM process for temporary visa holders in positions requiring at least a Bachelor’s degree upon request and did not consider the internal need for the temporary visa holder to permanently fill the position, to consider their performance or seniority, or to consult with their manager.
The complaint further alleges that Facebook would not consider qualified U.S. workers for PERM-related positions and would instead offer them comparable non-PERM-related positions or, where such a position was not available, would temporarily suspend the PERM process and the U.S. worker would be declined employment. Indeed, the IER compared the average number of applicants that typically applied to non-PERM positions (104) and PERM positions (typically 0-4 with over 90% of cases having 0-1 applicants). The IER also notes that Facebook would often simultaneously be recruiting for comparable positions through the PERM and non-PERM processes. The complaint further notes that of the over 4,000 U.S. workers who applied to the non-PERM positions, none were considered for any of the comparable PERM positions even where they met the minimum requirements.
As a result of these allegations, the IER charges Facebook with three (3) Counts, including pattern or practice of (1) discriminating against U.S. workers in the hiring practice, (2) failing to consider U.S. workers, and (3) failing to hire U.S. workers. In sum, the IER alleges that Facebook knowingly and intentionally deterred U.S. workers from applying for PERM-related positions and failed to meaningfully recruit U.S. workers for such positions when it engaged in the following standard practices when recruiting for PERM-related positions based on its alleged preference to give the position to temporary visa holders.
Relying on less effective recruitment methods designed to deter applicants when recruiting for PERM-related positions
Subjecting applicants to more burdensome application requirements designed to deter applicants from applying to the position
The Complaint alleges that such actions constitute a pattern or practice of intentionally discriminating against, failing to consider, and failing to hire U.S. workers based on their citizenship or immigration status because they had a real and present interest in working for Facebook but were prevented from doing so based on the above recruitment practices.
In conclusion the IER requests that Facebook be ordered to not only cease it’s current alleged illegal practices and take affirmative steps to address them, but also to pay back, including interest, each protected individual the company is alleged to have discriminated against who is found to have suffered uncompensated lost wages due to denied or delayed employment as a result of the alleged discriminatory practices.
What You Need to Know
This complaint bring to light the tension between the Immigration and Nationality Act’s (INA) anti-discrimination provisions and the Department of Labor’s extremely rigid PERM recruitment requirements. More specifically, the INA’s anti-discrimination provisions contain a general prohibition on basing employment decisions (including hiring, referral for fees, or termination of employment) on an individuals’s national origin, including U.S. citizens and certain other protected categories. There are a range of exceptions, including where an employer is lawfully required to inquire as to, or base an employment action on, a person’s national origin, including verification of employment authorization or lawful immigration status, none of which are alleged to exist in this case.
In contrast to this, the DOL PERM regulations specifically require employers to conduct a series of regimented recruitment steps that may often deviate from their normal recruitment practices, including strict requirements for where, when, and for how long to place notices advertising for the open position. In addition, because the PERM process only permits companies to use the minimum requirements in its PERM recruitment, employers often must amend their normal job posting language to remove requirements that the DOL regulations do not consider to qualify as minimum requirements (such as preferred skills, qualitative personality traits, etc.). While there is some case law discussing an employer’s requirement to engage in a good faith job search that resembles their normal recruiting process as closely as possible, given the stringent requirements of PERM, this type of recruitment is often required to deviate from an employer’s normal practices in order to remain compliant with the DOL’s PERM regulations. In addition, unlike normal recruitment, where a potentially qualified applicant is identified, the employer must go through exhaustive steps to show that they were timely notified and considered within a reasonable period of time (including proof of contact via certified mail, etc.).
Analysis and Context
It’s important to remember that the IER’s complaint is not an objective assessment of the actual facts and circumstances giving rise to the litigation and is merely the first step in a multi-step litigation process. Facebook will be afforded the opportunity to respond and provide countervailing arguments and factual assertions rebutting the IER’s allegations. As such, the IER’s unchecked allegations will be better contextualized when read in conjunction with Facebook’s response, once submitted. That said, the complaint against Facebook is part of a larger IER investigation into discriminatory employer practices related to the PERM and H-1B sponsorship process stemming from the 2017 “Buy American, Hire American” Executive Order. As such, employers should begin to proactively review their current PERM recruitment practices to identify potential vulnerabilities similar to those outlined in the IER’s Complaint.
While the outcome of the Complaint is yet to be seen, it does shine a spotlight on a long-standing concern of the immigration bar which is that the DOL PERM process is extremely artificial and outdated and in need of serious reforms both to reflect the actual hiring needs and recruitment practices of U.S. employers and that the program more effectively protects the interests of U.S. workers.
D&S will continue to monitor this ongoing litigation and provide updates as they become available.