On Dec 01 2021 by Michele G. Madera

PERM Recruitment Practices: How the Facebook Settlement Should Affect Your PERM Program

Klasko Immigration Law Partners recently hosted a large Q&A-style webinar in which the following question was posed (you can find that webinar recording here):

What are your thoughts on the government’s statements and actions in this week’s Facebook settlement, and what changes, if any, do you recommend with regard to PERM advertising going forward?

The Facebook settlement may be alarming to many employers that conduct PERM recruitment; however, it is important to note that immigration laws, statutes, and regulations are not changed by the settlement terms. That said, there are some lessons to be gleaned when looking closely at the settlement agreement.

What was the Facebook settlement?

In October, the Department of Labor (DOL) and the Department of Justice (DOJ) both reached separate settlement agreements with Facebook regarding what was alleged to be their discriminatory hiring practices regarding citizenship and immigration status.

How was Facebook alleged to be discriminating in its PERM recruitment?

It is alleged that Facebook discriminated against and deterred US workers from applying to job postings related to the PERM process. Insights into what they were (or were not) doing properly can be derived from the settlement terms in how Facebook needs to conduct PERM recruitment moving forward. From the terms, it is clear that DOJ considered Facebook to be deviating too much from its usual recruitment practices during the labor certification process, by directing applicants for PERM positions to mail their applications, while Facebook’s usual openings accepted email or online applications. Further, the settlement requires PERM positions to be posted on the company’s website with other job opportunities and the applicants to be tracked in Facebook’s applicant tracking system.

What should a company’s PERM recruitment process look like?

The purpose of the labor certification process is to conduct a good faith test of the U.S. labor market. If at the end of that test, there are no minimally qualified, willing, or able U.S. workers, then the labor certification application can be submitted to the DOL. It is always advisable for employers to follow their standard recruiting practices when conducting the labor market test. This follows the good faith requirement mentioned above.

In essence, recruiting for a PERM position should look exactly like a company’s typical recruitment process for any other position – with the additional requirements layered on top to meet the regulatory requirements for posting and advertising. DOJ alleged that Facebook’s process for PERMs was different than its usual recruitment process for other positions, and by only accepting applications by mail, Facebook was not actually abiding by the good-faith recruitment process.

A complete list of the various requirements for PERM recruitment can be found in our PERM FAQs here.

How does the Facebook settlement affect PERM moving forward?

The PERM process has not fundamentally changed, but the settlement shows a shift in enforcement. Not only will Facebook need to change its PERM recruitment practices and abide by the DOL terms of the settlement (auditing, supervised recruitment), but the tech titan also incurred a $4.75 million civil penalty. Facebook was also ordered to create a settlement fund of up to $9.5 million for U.S. workers under the agreement.

An employment-based immigration attorney is the best tool to make sure your company is staying compliant with the PERM recruitment regulations.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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