Highlights:

• Employers should assess their PERM recruitment processes, ensuring alignment with standard recruiting practices.
• Establish training programs for recruiters, sourcers, and hiring managers involved in U.S.-based PERM recruitment.
• For employers outsourcing PERM recruitment, scrutinize third-party practices to avoid imputed violations.

 

At a Glance

• Apple Inc. (Apple) agreed to pay $25 million toward a civil penalty and a back-pay fund to compensate certain individuals who were allegedly discriminated against in Apple’s Program Electronic Review Management (PERM) process.


• This civil penalty and back-pay fund represent the largest fine and monetary amount recovered by the Immigrant and Employee Rights (IER) Section of the Department of Justice's (DOJ) Civil Rights Division. Previously, the DOJ’s 2021 Facebook Inc. (now known as Meta Platforms) settlement of $14.25 million represented the largest fine and monetary award.


• We anticipate more activity in IER enforcement actions involving alleged discriminatory practices based on citizenship status.

The U.S. DOJ announced a settlement with Apple over allegations the company engaged in discriminatory recruitment and hiring practices related to the process of seeking labor certification, or the PERM process, in violation of the Immigration and Nationality Act’s anti-discrimination provision, 8 U.S.C. § 1324b (INA).

The U.S. Department of Labor (DOL) has specific rules for hiring a foreign worker to remain in the U.S. on a permanent basis for employment reasons. This labor certification application, or PERM process, is typically the first step in a three-step process for foreign workers to apply for U.S. permanent residence. The PERM process requires the employer to use good faith in recruiting for positions and demonstrating that there are no U.S. workers qualified for the position before the role is available to a foreign worker on a full-time and permanent basis. The efforts required by the PERM process are intended to ensure that the sponsoring employer would properly test the labor market to determine whether there are qualified, available, and interested U.S. workers for the job.
 

In February 2019, the IER section of the DOJ initiated an independent investigation into Apple’s recruitment and hiring practices related to the PERM process based on citizenship status. IER’s investigation found reasonable cause existed to believe that from January 1, 2018, to December 31, 2019, Apple allegedly engaged in a pattern or practice of discriminatory PERM recruitment, including:
 

• Apple preferred workers holding temporary employment visas for PERM-related positions based on their citizenship status instead of qualified and available U.S. applicants.


• When an Apple employee holding a temporary visa status requested to become a permanent employee, Apple departed from its standard recruiting process.


• Apple followed different procedures allegedly designed to favor temporary visa holders and deter U.S. applicants (which include U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status).


• Apple’s procedure of not advertising PERM-related positions on its external job website and requiring all applicants for these positions to mail paper applications, as opposed to submitting applications electronically, was a less effective recruitment procedure that had the effect of deterring U.S. applicants from applying for PERM-related positions because zero to very few applications were received in this manner.


• Apple failed to consider certain internal applications for PERM-related positions if they only submitted their applications electronically.

According to the settlement agreement, Apple agreed to:
 

• Pay $6.75 million to the U.S. Treasury in civil penalties.


• Pay $18.25 million to a settlement fund for U.S. workers who meet the definition of "qualified individuals."


• Draft a policy governing Apple’s PERM-recruitment process subject to IER’s review and approval.


• Prepare semi-annual reports of Apple’s recruiting procedures for PERM-related positions, including a list of PERM-related positions for which a PERM application was filed, the number of applicants who applied were interviewed, and deemed qualified for each position.


• Provide training to Apple’s recruiters and sourcers with any involvement in recruiting or hiring U.S.-based positions of their obligations under the INA.


• Provide training to Apple’s hiring managers of PERM-related positions on their obligations under the INA.

Employer Takeaways

Employers that process PERM applications for their foreign employees who are on temporary work visas should conduct a fresh evaluation of their PERM recruitment processes, identify any parts that are not in sync with their standard recruiting processes, and have those parts carefully evaluated against the specifics of the case, as well as broader DOL and IER case law.

Employers should remain aware of the PERM process requirements and increased DOJ enforcement action against companies. Companies should take the time to frequently revisit their recruitment processes to ensure they remain compliant with regulations but, most importantly, with their own standard recruitment practices.

For employers who outsource the PERM recruitment process to third-party companies, such as advertisement agencies, it is important to remember any violations by the third party will be imputed to the employers and may result in substantive fines, supervised recruitment, and even disbarment from the PERM program.

The material contained in this communication is informational, general in nature, and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules, or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

This article first appeared on the Faegre Drinker website.

Authors' Bios

	Sylvia Bokyung St. Clair is an Associate at Faegre Drinker.
	Helena Wasey Abebe is an Associate at Faegre Drinker.

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