WASHINGTON – The U.S. Department of Labor and the U.S. Department of Justice today announced separate settlement agreements with Facebook regarding its use of the permanent labor certification program, also known as PERM.
The Department of Justice’s settlement resolves its claims that Facebook routinely refused to recruit, consider, or hire U.S. workers – which includes U.S. citizens, U.S. nationals, asylees, refugees, and lawful permanent residents – for positions it had reserved for temporary visa holders in connection with the PERM process. The Department of Labor’s settlement resolves issues it separately identified through audit examinations of Facebook’s recruitment activities related to PERM applications filed by Facebook with the department’s Employment and Training Administration. Specifically, Facebook filed its applications with ETA’s Office of Foreign Labor Certification.
The Justice Department filed a lawsuit in December 2020 against Facebook alleging that – from at least Jan. 1, 2018, until at least Sept. 18, 2019 – Facebook routinely reserved jobs for temporary visa holders through the PERM process. The lawsuit specifically alleged that, in contrast to its standard recruitment practices, Facebook used recruiting methods designed to deter U.S. workers from applying to certain positions, such as requiring that applicants submit applications by mail only; refusing to consider U.S. workers who applied to the positions; and hiring only temporary visa holders. The lawsuit alleges Facebook’s hiring process for these positions intentionally discriminated against U.S. workers because of their citizenship or immigration status, in violation of the anti-discrimination provision of the Immigration and Nationality Act. The INA generally prohibits employers from discriminating against workers because of their citizenship or immigration status.
In early 2021, the Labor Department initiated audit examinations of Facebook’s pending PERM applications to determine compliance with regulatory requirements. OFLC audits identified potential regulatory recruitment violations and sought additional information from Facebook to confirm that Facebook followed all applicable regulatory requirements regarding the posting and advertisement requirements for these positions.
Under the Department of Justice’s settlement, Facebook will pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination and train its employees on the INA’s anti-discrimination requirements. In addition, Facebook will be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices. Today’s civil penalty and back pay fund represent the largest fine and monetary award that the division has recovered in the 35-year history of the INA’s anti-discrimination provision.
“Facebook is not above the law, and must comply with our nation’s federal civil rights laws, which prohibit discriminatory recruitment and hiring practices,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Companies cannot set aside certain positions for temporary visa holders because of their citizenship or immigration status. This settlement reflects the Civil Rights Division’s commitment to holding employers accountable and eradicating discriminatory employment practices.”
Under the Department of Labor’s OFLC settlement, Facebook will conduct additional notice and recruitment for U.S. workers and will be subject to ongoing audits to ensure its compliance with applicable regulations.
“This settlement is an important step forward and means that U.S. workers will have a fair chance to learn about and apply for Facebook’s job opportunities,” said the U.S. Department of Labor’s Solicitor Seema Nanda. “No matter an employer’s size or reach, the Department of Labor is committed to vigorously enforcing the law.”
The Department of Justice, Civil Rights Division’s Immigrant and Employee Rights Section is responsible for enforcing the anti-discrimination provision of the INA. The statute prohibits citizenship or immigration status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.
Applicants or employees who believe they were discriminated against based on their citizenship, immigration status, or national origin in hiring, firing, recruitment, or during the employment eligibility verification process (Form I-9 and E-Verify); or subjected to retaliation, can file a charge. The public also can contact IER’s worker hotline at 1-800-255-7688; call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); email [email protected]; sign up for a free webinar; or visit IER’s English and Spanish websites. Subscribe to GovDelivery to receive updates from IER.
ETA’s Office of Foreign Labor Certification provides national leadership and policy guidance to carry out the responsibilities of the Secretary of Labor under the INA, as amended, concerning the admission of foreign workers to the U.S. for employment.
A permanent labor certification allows an employer to hire a foreign worker to work permanently in the U.S. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services, the employer must obtain a certified labor certification application from OFLC. The Secretary of Labor must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Refer suspected violations related to the PERM labor certification process to the OFLC at [email protected].