On October 19, 2021, the U.S. Department of Justice (DOJ) and the U.S. Department of Labor (DOL) announced that they had reached separate settlement agreements with Facebook regarding the company's purportedly discriminatory PERM labor certification practices. These settlement agreements stem from the DOJ complaint (joined later by DOL), in which the government alleged that Facebook uses different recruitment methods for PERM labor certifications than those employed for regular positions. The complaint particularly alleged that "in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer's regular recruiting process," citing Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). Interestingly, Facebook was not accused by DOJ of violating PERM labor certification recruitment regulations; instead, Facebook was charged with intentional discriminatory practices under the Immigration and Nationality Act § 274B(a)(1)(A). The INA generally prohibits employers from discriminating against workers because of their citizenship or immigration status.
Before this settlement, some employers and practitioners may have regarded PERM labor certification as merely a DOL-created process, as opposed to being grounded in the INA, and focused their processes on meeting the recruitment requirements set by DOL, risking neglect of the INA's antidiscrimination provisions. In their motion, Facebook argued to dismiss because they were in compliance with the DOL PERM labor certification rules and that the antidiscrimination rules did not apply to PERM recruitment. Both the motion and argument, however, were dismissed. These two lawsuits that involved two separate federal departments enforcing separate rules and statutes serve as an important reminder that legal fields are not mutually exclusive and often overlap on employment-based immigration issues.
The Facebook decision put employers and practitioners on notice that PERM labor certification recruitment is under dual compliance regime, and the methods undertaken by employers must not only comply with DOL regulations but also with federal immigration law. Since this decision came down some of the employers have reevaluated its PERM recruitment practices while the agencies continue to look for issues. At the recent AILA Spring Conference, a DOJ representative emphasized that DOJ and DOL continue to work closely together to monitor employers' recruitment efforts to ensure dual compliance. PERM labor certification regulations are the minimum requirements for the recruitment process. While there could be differences between a company recruitment method for PERM labor certification positions and their regular positions, this difference must be explainable and not attributable to intentional discrimination towards U.S. workers. DOL and DOJ have their respective settlements with Facebook as each agency has its own mission and its own regulatory requirements. Since 2018 there has been a Memorandum of Understanding (MOU) for the DOL to educate the DOJ, and other agencies, regarding the DOL's programs. In 2021 the scope of this memorandum was expanded to include more information sharing and greater responsibility between the two agencies. DOL will provide training and greater information sharing to the DOJ's Immigrant and Employee Rights section (IER). Most notably per the MOU DOL will provide the IER "on a monthly basis, a list of entities currently undergoing DOL audit examination in connection with the immigrant and nonimmigrant employment-based visa programs for which DOL conducts audits, along with the visa program(s) under which each entity is being audited."1 Since the IER started investigating Facebook over two years ago, the expanded MOU is not a result of the settlement but could have been a result of expanded inter-agency cooperation in the course of the Facebook investigation.
Among other matters, in the Facebook lawsuit the DOJ highlighted that Facebook required applicants to apply by mail for openings under PERM labor certification program while for its regular positions they posted these positions on their website. This was argued to be a key fact that Facebook intended to make it more difficult for U.S. workers to apply for PERM labor certification positions. While having applicants mail their resume is allowed under the PERM labor certification regulations, if this is not the regular application method, this difference like any other difference from the standard recruitment process must not be attenable to intentional discrimination.
Furthermore, the sponsoring employer must not intend to make it more difficult for U.S. workers to apply to the PERM position or refuse to consider U.S. workers who apply to these positions by re-directing them to other openings within company. That is, the PERM labor certification process must not be reverse engineered to allow a foreign worker to be hired over a qualifying U.S. worker. PERM labor certification recruitment as per the law ought not to have a predetermined outcome.
Under the PERM regulations, companies have an obligation to conduct a good faith recruitment. The DOL sets out their regulations to make explicit the minimum steps companies must take towards that end and these steps are attested to on the Form 9089 and documented in the audit file. While like minds can disagree about the meaning of "good faith," these settlements make clear that conducting a recruitment in a way which intentionally discourages US workers from applying does not adhere to the INA's antidiscrimination provisions. Companies engaging in PERM labor certification must be able to show that their recruitment efforts meet both DOL regulations and do not discourage or discriminate against US workers in compliance with the PERM labor certification process's dual regime.
The current practices laid out in the DOL rules do not comport with real, modern recruitment practices. Until Congress takes steps to amend DOL regulations to ensure that employers are not tripped up by the requirement for a good faith recruitment as suggested by the Facebook decision and DOL's antiquated rules, the safest course for employers may be to align their regular and PERM labor certification recruitment practices allowing only those differences dictated by the DOL regulations. For example, if the employer normally advertises its available jobs online and allows online applications, they should do the same for PERM labor certification positions. At the same time, the employer must advertise PERM labor certification openings in two Sunday print newspapers, as required by DOL regulations, even though they do not normally advertise in print for their regular job openings.
The settlement agreement with Facebook is very fact specific and should not be read as a point-by-point guidance for other cases but rather should be seen as a wider trend of changes coming to PERM process. DOL emphasize that while following current PERM regulations, employers should not forget the reason for the labor market tests and should keep that purpose in mind when undertaking its recruitment activities and adhere to the INA's antidiscrimination provisions.
1 Civil Rights Division, U.S. Department of Justice and Office of Foreign Labor Certification, Employment and Training Administration, U.S. Department of Labor. Memorandum of Understanding Regarding Information Sharing and Case Referral. https://www.justice.gov/crt/page/file/1356506/download, pg. 7
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