On October 22, 2021, the US Department of Justice and the US Department of Labor announced separate settlement agreements with Facebook regarding its use of the permanent labor certification program (PERM).
The resolutions follow a December 2020 lawsuit filed by the DOJ and an audit by DOL initiated in early 2021. In the lawsuit, DOJ alleged that from at least January 1, 2018, until September 18, 2019, Facebook reserved jobs for temporary visa holders through the PERM process and, in contrast with its standard recruitment methods, attempted to deter US workers from applying to specific positions.
The DOL audited Facebook’s pending PERM applications to determine compliance with regulatory requirements. The Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) 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.
In the settlement with the DOJ, Facebook will pay a civil penalty of $4.75 million to the United States and up to $9.5 million to eligible victims of alleged discrimination and train its employees on the anti-discrimination requirements of the Immigration and Nationality Act (INA). In addition, Facebook must conduct more expansive advertising and recruitment for its job opportunities for all PERM positions.
Under the DOL OFLC settlement, Facebook will conduct additional notice and recruitment for US workers and be subject to ongoing audits to ensure compliance with applicable regulations.
Erickson Insights
Permanent labor certification allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before an employer can petition USCIS, the employer must obtain a certified labor certification application from OFLC. The Secretary of Labor must certify to USCIS that there are not sufficient US workers able, willing, qualified, and available to accept the job and that employing a foreign worker will not adversely affect the wages and working conditions of similarly employed US workers.
The civil penalty and backpay are the largest fines and rewards recovered in the 35-year history of the INA’s anti-discrimination provision.