man shaking hands with new employee

Facebook Settles Employment Discrimination Claim Over PERM Recruiting Practices

By Douglas Lipsky

The U.S. Department of Justice (DOJ) has entered into a settlement with Facebook to resolve claims that it refused to recruit or hire American workers for positions it had reserved for temporary visa holders in connection with the PERM process. The settlement highlights the various legal woes facing the social media giant as well as the discriminatory employment practices in the tech sector more broadly. 

The Backdrop

The DOJ filed a lawsuit against Facebook last December claiming that the company violated the anti-discrimination provisions of the Immigration and Nationality Act (INA), which prohibits discrimination against workers because of their citizenship or immigration status. 

The lawsuit involved Facebook’s use of the permanent labor certification or PERM program to qualify foreign nationals for permanent resident status in the U.S. The PERM program, which is under the jurisdiction of the U. S. Department of Labor (DOL), requires employers to test the labor market to ensure that no U.S. workers are qualified and available for an advertised position. U.S. workers include citizens, nationals, asylees, refugees, and lawful permanent residents. 

The DOJ’s lawsuit alleged that Facebook:

  • Routinely reserved jobs for temporary visa holders through the PERM process
  • Used recruiting methods designed to deter U.S. workers from applying to certain positions, such as requiring applications to be submitted by mail only
  • Refused to consider U.S. workers who applied to the positions
  • Hired only temporary visa holders

By engaging in these practices, Facebook discriminated against U.S. workers because of their citizenship or permanent resident status, in violation of INA. Under the terms of the settlement, Facebook agreed to pay a civil fine of $4.75 million and up to $9.5 million to eligible victims. 

In addition, the Labor Department conducted audits of Facebook’s pending PERM applications this year and found that the company’s practices were inconsistent with its regular recruiting process. The DOL has entered into a separate settlement with Facebook that requires the company to take steps to ensure its PERM recruiting process adheres to DOL rules and closely matches its standard recruitment practices

The Takeaway 

The antidiscrimination provisions of INA were put in place to prevent discrimination against job applicants who appear to be foreign or have foreign-sounding names. In this case, however, Facebook used the PERM certification to discriminate against U.S. workers, though the company denied any wrongdoing. 

Ultimately the settlements send a message to employers, particularly in the tech sector, that PERM labor certifications must comply with DOL rules and not discriminate against U.S. workers. If you believe you have been discriminated against based on your citizenship or immigration status, talk to an employment lawyer at Lipsky Lowe. 

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.