On Oct. 19, 2021, the Department of Justice, Immigrant and Employee Rights Section (IER) announced a settlement agreement with Facebook to resolve issues regarding Facebook’s practices to recruit for PERM applications. The settlement agreement requires Facebook to pay a significant fine, provide a fund for the settlement of individual claims and modify recruiting practices for PERM cases.
The PERM process is the first step employers must complete to permit a foreign national employee to apply for permanent resident status (green card) in the United States. PERM stands for Program Electronic Review Management, a title clearly chosen for the acronym rather than the description. PERM refers to the application filed with the Department of Labor when seeking a certification that hiring a foreign national will not adversely affect U.S. workers. Specifically, the DOL must determine that the position is offered at or above the prevailing wage and that there are no U.S. workers in the applicable labor market ready, willing, available and qualified for the position.
To meet the labor market test for professional positions, the employer must advertise for the position in the Sunday edition of a newspaper of general circulation, post the position on the job board of the State Workforce Agency and choose three of 10 options for recruiting. The 10 options include general job search websites, professional journals, the employer’s website, local newspapers, college placement offices, job fairs and employee referral programs with incentives. Employers must consider all applicants and determine if they are qualified for the position. If a qualified applicant applies for the position, there is no requirement that the applicant be hired, but the PERM application cannot be filed.
Allegations brought by IER
IER filed a complaint before the Office of the Chief Administrative Hearing Officer (OCAHO) in December 2020, alleging that Facebook violated the anti-discrimination provisions of the Immigration and Nationality Act by preferring the foreign national employees for whom the company was filing a PERM application to the disadvantage of qualified U.S. workers. The factual basis for this claim was that Facebook modified its normal recruiting practices to support the PERM application. Specifically, Facebook, which appropriately has a reputation for being a leading technology company, did not post PERM-related positions on its own website, but instead utilized three other recruiting options from the 10 options in the PERM process. Facebook chose to recruit using a professional journal, a recruiting website not its own and a local newspaper. While the Sunday ads were placed in the San Francisco Chronicle, Facebook did not advertise on the website offered at no additional cost by the Chronicle and chose a different website. In addition, Facebook required applicants to apply for PERM-related job postings by sending a hard copy resume by mail rather than applying online or by email as was done for routine recruiting.
By all appearances, Facebook’s recruiting complied with the PERM regulations. Nevertheless, rather than proceeding to trial on the defense that the recruiting practices complied with the regulations, Facebook agreed to an extensive settlement modifying its recruiting practices for PERM applications to more closely resemble its non-PERM recruiting. The settlement included the requirement of extensive training for the recruiting staff, continued monitoring for a period of time and, most prominently, the payment of $4.75 million in civil penalties and $9.5 million for a settlement fund to pay aggrieved applicants who claimed discriminatory treatment.
It is easy to distinguish Facebook from the majority of other employers based on a few factors that set it apart. Facebook is one of the world’s most visible technology companies and to many Facebook users, embraces the concept that there is a technological solution to every problem. Thus, the requirement of a hard copy resume mailed to a physical location was seen as odd by IER. In addition, Facebook filed 2,600 PERM applications over a period of 20 months, an extraordinarily high number of applications. The complaint filed by the IER also noted that Facebook received, on average, 104 applications for each non-PERM related job posting, whereas the company reported zero applicants in over 1,100 of the PERM-based recruiting cases. In the remaining cases, there were only a handful of applicants and virtually no applicants for any of the 2,600 positions were offered a position.
What employers can learn from the case
In light of the settlement agreement with Facebook, many employers may want to re-examine their policies and procedures for recruiting for PERM cases. There are several cases that discuss the general requirement to conduct the recruiting in good faith. However, neither the regulations nor the case law define what it means to conduct the recruiting in good faith. Generally, the case law has focused on the review of resumes and the steps the employer has taken, or failed to take, to contact and consider the applicants. The Facebook complaint, for the first time, raised the issue of the employer’s choice of recruiting media as an element of good faith, as well as the initial requirement for applicants to mail a hard copy resume. The complaint outlined the difference in the responses to the methodology between PERM and non-PERM recruiting, and concluded, based upon the statistical analysis, that the PERM recruiting unfairly discriminated against U.S. workers.
The complaint specifically alleged that the recruiting methodology should include a “good faith search that closely resembles the employer’s normal recruiting process.” While this is part of the general PERM lore, a review of the case cited by the Department of Justice demonstrates that it does not support the government’s theory of what constitutes good faith. Nevertheless, the prominence of Facebook, and the publicity that accompanied this large settlement, commands the attention of employers as they determine recruiting strategy to support PERM applications.
While there are very strong arguments that the policies and practices implemented by Facebook, and adopted by other employers, properly follow the regulations, the Facebook settlement and the $14 million the company agreed to pay suggests that employers seeking a PERM certification may want to adopt recruiting practices that more closely match non-PERM-related recruiting.