United States: U.S. Departments of Justice and Labor Settle Facebook Lawsuit, Changing PERM Landscape for Many Employers

The U.S. Departments of Justice (DOJ) and Labor (DOL) have announced separate settlement agreements in their U.S. worker discrimination lawsuit against Facebook regarding the company’s use of the PERM labor certification program. The suit alleges that the company engaged in unfair recruitment and hiring practices based on citizenship or immigration status in violation of U.S. law. The settlements are not an admission of liability, which Facebook denies, but the terms of the DOJ agreement could impact employer PERM programs nationwide. The details of the DOL settlement agreement are not yet public.

While not all employers may be affected by the DOJ settlement, companies with large PERM programs and/or whose PERM recruitment deviates in certain respects from their standard methods of recruitment, may face new government scrutiny. Employers should consider engaging with counsel to assess the impact of the Facebook settlement on their PERM program.

The DOJ settlement demonstrates a significant shift in government enforcement of the PERM program, which had historically been enforced primarily by the Labor Department through audits and supervised recruitment. This settlement includes a significant monetary component—$14.25M in total—as well as requiring Facebook to change some of its PERM recruitment practices prospectively.

While the statute and regulations governing the PERM labor certification program remain unchanged, this marked shift in enforcement may cause many companies to revisit their PERM processes and make adjustments based on the new landscape. In general, under the new framework, the closer a PERM recruitment process is to a company’s standard recruitment process, the more favorably the government is likely to view the PERM program.

Based on the current information available, there is no indication that employees with approved PERM labor certifications will be affected by the change in government enforcement. PERM applications that are currently pending with DOL should not be affected either, though audited cases could potentially be affected.  Employees who are earlier in the PERM process, and those for whom the PERM process has not begun, are more likely to be affected, depending on their company’s current PERM protocols.

The DOJ-Facebook agreement settles a legal dispute between Facebook and the agency. By its terms, it is not an admission of liability by Facebook, which denies the government’s allegations of U.S. worker discrimination. The agreement will be effective for a three-year period from the effective date of October 19, 2021.

The monetary component of the settlement requires that Facebook pay a civil penalty of $4.75 million to the U.S. government, and create a settlement fund to pay up to $9.5 million to U.S. workers who meet the definition of “Qualified Individuals” under the agreement. The company is also required to make various changes to their PERM recruitment practices, including to:

• Accept electronic resumes or applications on its website in the same manner as for non-PERM positions;
• Not require or encourage applicants to apply via mail for PERM-related positions;
• Post all PERM-related positions on company’s website in the same manner as other roles;
• Enter all applicants for PERM-related positions in company’s internal recruiting system for consideration for related job opportunities; and  
• Take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices.

PERM labor certification law has not changed, but based on the government’s statements and actions in this week’s Facebook settlement, it appears that the PERM government enforcement landscape has changed significantly. Companies are encouraged to reach out to counsel to assess their PERM program in light of these new developments.