Good Faith PERM Recruitment: Insights from Apple & Facebook Settlement

In the ever-evolving landscape of employment law and immigration compliance, recent settlements between major corporations and the Department of Justice (DOJ) have cast a spotlight on the critical importance of good faith efforts in recruitment, especially within the context of the Permanent Labor Certification Program (PERM). The landmark agreements with Apple Inc. and a prior settlement with Facebook underscore the DOJ’s power to enforcing the anti-discrimination provisions of the Immigration and Nationality Act (INA) and offer valuable insights for employers navigating the complexities of PERM recruitment.

Background: The DOJ’s Actions Against Apple and Facebook

Recently, the DOJ announced a significant settlement with Apple Inc., resolving allegations that the tech giant engaged in discriminatory hiring and recruitment practices against U.S. citizens and certain non-U.S. citizens with permanent work authorization. Apple was found to have violated the INA’s anti-discrimination requirements when recruiting for positions under the PERM program. As part of the settlement, Apple was required to pay up to $25 million in backpay and civil penalties, marking the largest award recovered under the INA’s anti-discrimination provision.

This settlement follows a similar case from two years ago, where the DOJ reached a $14.25 million agreement with Facebook over its PERM recruitment practices. The investigation revealed that Facebook’s recruitment methods were designed to deter U.S. workers and other non-U.S. citizens with permanent work authorization from applying for ‘PERM’ positions, highlighting a failure to adhere to standard recruiting practices for PERM positions.

Key Findings and Settlement Requirements

The DOJ’s investigation into Apple revealed several discriminatory practices, including the failure to advertise PERM positions on its external job website and requiring paper applications for these positions, contrary to its standard procedures. Such practices resulted in fewer applications from candidates whose work authorization does not expire, disadvantaging protected workers. Under the agreement, Apple must enhance its recruitment efforts for PERM positions to align more closely with its standard practices, including posting jobs on its external site, accepting electronic applications, and ensuring applicants are searchable in its tracking system.

Similarly, Facebook’s settlement required the company to adopt more inclusive recruitment strategies, accept electronic applications, and undergo ongoing audits by the Department of Labor (DOL).

The Importance of Good Faith Recruitment Efforts

The settlements with Apple and Facebook emphasize the DOJ’s interpretation of “good faith” recruitment efforts. Employers are expected to make earnest attempts to test the job marked for able, willing, and qualified US workers. This includes adopting recruitment practices that do not discriminate based on citizenship or immigration status and ensuring timely communication with all applicants.

It is important to note that the specific requirements placed on Apple and Facebook as part of the DOJ settlement are not currently part of PERM regulation. They do, however, shed light on the DOJ’s expectations regarding good faith efforts in recruitment. These cases serve as a reminder of the potential legal and financial consequences of non-compliance.

Navigating Compliance: Recommendations for Employers

In light of these developments, employers should proactively review their current recruitment practices, both for PERM and non-PERM positions to make sure their PERM recruitment practices resonate with their actual (non-PERM) recruitment practices. The following steps can help ensure compliance and mitigate the risk of discrimination claims:

• Evaluate Recruitment Practices: Ensure that recruitment efforts for PERM positions are consistent with those for non-PERM roles. This includes advertising positions on widely accessible platforms and accepting applications through modern, convenient methods.
• Ensure Timely Communication: Make a concerted effort to contact all applicants within a reasonable timeframe, demonstrating a genuine interest in evaluating all potential candidates.
• Conduct Regular Audits: Periodically review your recruitment processes to identify and address any practices that may inadvertently disadvantage certain groups of applicants.
• Stay Informed: Keep abreast of developments in employment law and immigration policy to ensure your recruitment practices remain compliant with current standards and interpretations.

Conclusion

The DOJ’s settlements with Apple and Facebook highlight the significance of good faith efforts in recruitment under the PERM program. By adhering to principles of fairness and inclusivity, employers can not only avoid costly legal challenges but also enrich their workforce with diverse talents and perspectives. As the legal landscape continues to evolve, proactive compliance and a commitment to equal opportunity will be key to navigating the complexities of immigration and employment law.