NEWS

PERM Lawsuit Settlements for Apple, Facebook and SpaceX  

The realm of employment-based immigration is fraught with complexities, and the intricacies of the Program Electronic Review Management (PERM) labor certification process – the first stage for most employment-based green card cases – can be especially challenging for employers. In recent months, the Department of Justice (DOJ) has settled disputes with Apple and Facebook over allegations of discrimination against US workers in PERM recruitment practices. These settlements, coupled with an ongoing lawsuit against SpaceX, underscore the difficulty of complying with the byzantine PERM regulations and anti-discrimination laws and the importance of working with an experienced immigration attorney to navigate the PERM labor certification cases.

Apple Settlement

On November 9, 2023, Apple agreed to pay $25 million to settle allegations of discriminatory hiring practices against U.S. citizens and certain non-U.S. citizens authorized to work in the country. The settlement stems from a 2019 DOJ investigation that found Apple favored foreign workers over U.S. citizens for certain positions.

Key Findings and Settlement Terms

  • Apple failed to advertise PERM positions on its external job website, limiting the pool of applicants.
  • Apple required all PERM position applicants to submit paper applications through mail, while electronic submissions were accepted for other positions.
  • Apple’s recruitment practices resulted in few, or no applications, being received from qualified U.S. citizens and non-U.S. citizens with employment authorization for PERM positions.

 

To address these issues, Apple has agreed to:

 

  • Post PERM positions on its external job website.
  • Accept electronic applications for PERM positions.
  • Make PERM positions searchable in its applicant tracking system.

Facebook Settlement

On October 19, 2021, Facebook agreed to pay a combined $14.25 million to settle allegations of discrimination against U.S. workers in its hiring practices. The settlements stem from a lawsuit filed by the Justice Department in December 2020, which alleged that Facebook discriminated against U.S. workers by reserving certain positions for temporary visa holders and discouraging U.S. workers from applying for these positions.

 

Key Findings and Settlement Terms

  • Facebook routinely reserved certain positions for temporary visa holders through the PERM program.
  • Facebook intentionally discouraged U.S. workers from applying for these positions.
  • Facebook’s recruitment and hiring practices violated the Immigration and Nationality Act (INA).

To address these issues, Facebook has agreed to:

  • Pay a $4.75 million civil penalty to the United States.
  • Establish a $9.5 million fund to compensate eligible victims of its alleged discrimination.
  • Implement enhanced recruitment and hiring practices to ensure that U.S. workers have a fair opportunity to compete for open positions.

SpaceX Lawsuit

On August 24, 2024, the DOJ filed a lawsuit against SpaceX, alleging that the aerospace company had engaged in discriminatory hiring practices against refugees and asylees practices from at least September 2018 to May 2022. The DOJ’s complaint alleges that SpaceX actively discouraged these individuals from applying for open positions, failed to fairly consider their applications, and refused to hire them solely based on their citizenship status. These actions, according to the DOJ, constitute a clear violation of the Immigration and Nationality Act (INA), which prohibits employment discrimination based on national origin.

Key Points of the DOJ Lawsuit

  • The DOJ’s investigation revealed that SpaceX made false claims about export control laws to justify its discriminatory hiring practices. The company asserted that it was barred from hiring refugees and asylees due to export control regulations, when in fact, these laws do not impose any such restrictions.
  • SpaceX allegedly implemented a systematic pattern of discrimination against refugees and asylees, discouraging them from applying for open positions through various means, including public announcements, job applications, and other online recruiting communications.
  • The DOJ further alleges that SpaceX failed to maintain a fair and impartial hiring process, disregarding the qualifications and experience of refugee and asylum-seeker applicants and refusing to consider them for employment opportunities based solely on their citizenship status.

SpaceX Counterarguments

  • SpaceX has countered the DOJ’s allegations, arguing that the INA does not prohibit employers from considering citizenship status when making hiring decisions. The company maintains that it has always adhered to fair and nondiscriminatory hiring practices, and that its recruitment process does not discriminate against any specific group of applicants.
  • SpaceX has also asserted that the DOJ’s complaint is unconstitutional because it vests too much authority in the Office of the Chief Administrative Hearing Officer (OCAHO), an agency within the Department of Labor (DOL). The company contends that the OCAHO lacks the necessary authority to adjudicate discrimination claims under the INA.

 

Recent Update on the Lawsuit

In November 2023, Judge Rolando Olvera of the U.S. District Court for the Southern District of Texas sided with SpaceX on the constitutional issue. Judge Olvera ruled that the INA did not give the Attorney General the power to review decisions made by OCAHO ALJs, and that the DOJ’s complaint violated the Appointments Clause of the U.S. Constitution.

The legal dispute between SpaceX and the DOJ has significant implications for employers who utilize the foreign labor certification program to hire workers from outside the United States. The program, which is administered by the DOL, requires employers to conduct a good faith recruitment effort to ensure that there are no qualified U.S. workers available for the position before hiring a foreign worker.

More on Apple settlement: https://www.justice.gov/opa/pr/justice-department-secures-25-million-landmark-agreement-apple-resolve-employment

More on Facebook settlement: https://www.justice.gov/opa/pr/justice-labor-departments-reach-settlements-facebook-resolving-claims-discrimination-against

More on U.S. vs. Space Exploration Technologies Corp. d/b/a lawsuit: https://www.justice.gov/opa/pr/justice-department-sues-spacex-discriminating-against-asylees-and-refugees-hiring ; https://www.justice.gov/media/1311656/dl?inline

More on SpaceX counterargument against the DOJ: https://www.scribd.com/document/671968233/SpaceX-Lawsuit-Against-the-Justice-Department