The U.S. Department of Justice’s $14+ million settlement with Facebook over alleged discriminatory hiring practices through the PERM labor certification program indirectly accomplished what the U.S. Department of Labor (DOL) has failed to do for years – amend the PERM recruitment requirements to reflect “current” hiring practices.
For close to 20 years, DOL’s unchanged PERM recruitment regulations have required Sunday print advertisements to ensure that US workers are aware of and considered for PERM positions. In the real world, however, employers rarely if ever use newspaper print ads to find qualified employees. In fact, one only need to look at the classified advertisements in large Sunday circulations to realize that most advertisements are actually for PERM cases, not routine company openings. Yet, these print advertisements are required for PERM sponsorship, much to the consternation of HR professionals and recruiters who are tasked with using arcane hiring methods to comply with PERM recruitment regulations.
The PERM regulations themselves arguably require a large PERM filer to essentially bifurcate its recruitment efforts. On the one hand, an employer must follow the PERM regulations to establish that there are not qualified US workers for an open position. On the other hand, the PERM recruitment requirements are so out of touch that employers are forced to create separate and distinct recruitment programs for PERM and non-PERM hiring. This logically sets the stage for what the Immigration and Nationality Act’s anti-discrimination provisions seek to avoid, namely, different hiring methods that increase the likelihood of discriminatory recruitment. Indeed, one might argue that DOL’s PERM regulations in and of themselves cause discriminatory hiring practices (an argument that is best left for another article).
Regardless of the perspective, one thing remains crystal clear from the settlement: gone are the days that PERM recruitment can be put in its own box. Companies now must ensure that their recruitment is not discriminatory, despite DOL’s PERM requirements. For the first time since the inception of PERM, employers have been put on notice that the Justice Department, in addition to DOL, will be examining PERM hiring practices and their relationship to all other recruitment. HR representatives at companies with acute hiring needs must now integrate the required use of the PERM regulations with all other recruitment. For a company with hundreds, if not thousands of openings, this is a challenging if not seemingly impossible task. Yet, as the Facebook settlement illustrates, getting it wrong can expose a company to significant fines.
Fortunately, a roadmap to compliance lies in plain sight. The Department of Justice’s settlement with Facebook sets forth a framework for what is expected from Facebook (and presumably other employers) to avoid discriminatory hiring practices. Even though DOL’s own PERM regulations remain unchanged, employers with PERM programs are well served by simply following this roadmap in the immediate future to avoid the potential monetary fines, post settlement reporting and extensive training requirements imposed by the Facebook settlement. The expectations are as follows:
- Assign all PERM-related position postings a requisition number, which is associated with a job profile group;
- Post all PERM-related positions on the employer’s website in the same manner and format as other roles are posted and without indicating that the positions are related to a PERM filing;
- Accept electronic applications for all PERM-related positions via the company careers website, in the same manner as electronic applications are accepted for other roles posted on the company’s careers website;
- Enter into the company recruiting system all applicants to all PERM-related positions who apply via the careers website, enabling such applicants to be searchable and remain searchable in the same manner as applicants to non-PERM related positions at the company, and allow the company’s recruiting team to identify, consider, and/or hire such applicants for job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied;
- Do not require or encourage applicants to apply via mail for PERM-related positions; and
- Ensure that online functionality is enabled to allow applicants to PERM-related positions to apply electronically through state workforce agency websites, where there is such an option.
Through its settlement agreement with Facebook, the Justice Department has provided PERM filers this six-step program to avoid discriminatory hiring practices. Implementing these procedures will greatly decrease the potential exposure associated with immigration-related anti-discrimination practices. It’s a simple plan and should (and perhaps must) be followed by PERM filers in the future.