The U.S. Department of Justice (“DOJ”) and Department of Labor (“DOL”) recently announced major settlements in three separate immigration-related discrimination lawsuits involving U.S. companies. Although the specific allegations differ, these announcements underscore the need for U.S. companies to carefully implement their hiring practices to avoid legal consequences.
DOJ, DOL Settle with Facebook Over PERM Recruiting Practices
On Oct. 19, 2021, the DOL and DOJ jointly announced settlement agreements with Facebook regarding its use of the PERM labor certification program. The settlement resolves allegations that Facebook engaged in unfair recruitment and hiring practices in violation of U.S. law. Specifically, the alleged practices involved routinely refusing to recruit, consider, or hire U.S. workers for certain positions.
Under the PERM labor certification program, employers must test the labor market to ensure no qualified U.S. workers are available for a given employment opportunity. However, the DOJ and DOL lawsuits suggest Facebook routinely engaged in recruiting methods designed to deter U.S. workers from certain positions, “such as requiring that applicants submit applications by mail only; refusing to consider U.S. workers who applied to the positions; and hiring only temporary visa holders.”
These practices violate the anti-discrimination provisions of the Immigration and Nationality Act (INA), which prohibit employers from discriminating against workers due to their citizenship or immigration status.
The Facebook settlement resolves the allegations and imposes a civil fine of $4.75 million payable to the United States government, as well as additional payments to victims of up to $9.5 million. Although the law underlying the PERM labor certification process has not changed, this high-profile settlement indicates a changing landscape for government enforcement of similar violations.
DOJ Settles with Baltimore Construction Company over H2-B Discrimination
In the wake of the Facebook announcement, the DOJ continued its crackdown on immigration-related discrimination claims.
On Oct. 27, 2021, the DOJ announced a settlement agreement with Priority Construction Corporation, a Baltimore company. This agreement settles allegations that the company engaged in discriminatory practices by failing to fairly consider U.S. workers for temporary laborer positions, instead giving preference to workers with H-2B visas.
According to the press release, Priority Construction claimed it was unable to locate qualified U.S. workers for labor positions, although it had not fairly assessed local applicants for available positions. In fact, the DOJ noted that in a 2019 job posting, Priority Construction imposed unnecessarily restrictive job requirements that sought to discourage U.S. workers from applying.
As a result of the settlement, Priority Construction will pay civil penalties of $40,600.00 to the United States and will be required to conduct enhanced U.S. worker recruitment for future positions.
DOJ Settles with California Company over Discrimination Against Non-U.S. Workers
On Nov. 4, 2021, The DOJ announced it had reached an immigration-related settlement with Rehrig Pacific Company, a California-based corporation. According to the allegations, Rehrig Pacific failed to allow a non-citizen to choose what documentation to provide to prove work authorization.
Under the INA, employers may not limit or specify the types of documentation required to prove permission to work in the United States. These provisions exist to protect non-citizens against discrimination due to their status. The prohibition against this form of discrimination, generally present during Form I-9 and E-Verify processes, is codified at 8 U.S.C. § 1324b(a)(6).
Pursuant to the settlement agreement, the company will pay civil penalties and will be required to train its employees who are responsible for verifying work authorization for prospective workers.
Certainly, these settlement agreements announced by the DOJ and DOL highlight the Biden administration’s willingness to continue to enforce the anti-discrimination provisions of the INA. To avoid similar legal challenges, U.S. companies must exercise care in implementing their hiring practices.