EXPERT INSIGHT WWW.LAWYER-MONTHLY.COM | MAY 2022 n brief, please outline the background of the US v Facebook decision and the complaint it concerned. In US v Facebook, OCAHO Case No. 2021B00007, the Immigrant and Employee Rights (IER) Section of the Civil Rights Division of the US Department of Justice sued Facebook for engaging in systemic discrimination against “US workers” in its hiring and recruiting practices related to positions it earmarked for the permanent labor certification (PERM) process between 1 January 2018 and 18 September 2019, in violation of 8 USC § 1324b (Unfair Immigration-Related Employment Practices). While Facebook’s standard recruitment practices are geared toward attracting the greatest number of qualified applicants and selecting only the most qualified among them, its practices for sponsoring temporary foreign workers for permanent employment during the covered period resulted in attracting no US workers who met even the minimum qualifications for the same classes of jobs. Facebook moved to dismiss IER’s suit on the grounds that the US Department of Labor (DOL) held exclusive jurisdiction over the PERM adjudication process and that its alleged discriminatory practices were fully compliant with DOL PERM rules. Administrative Law Judge (ALJ) Andrea R Carroll-Tipton denied Facebook’s motion and issued an opinion holding that the IER complaint stated valid pattern and practice and disparate treatment claims sufficient to merit discovery and trial. The ALJ rejected Facebook’s contention that the PERM process was a mere “test” of the labour market and therefore permissibly different from the company’s standard recruitment and hiring procedures where the IER or private complainant alleged that US workers had been locked out of selection for PERM positions notwithstanding an employer’s facial compliance with DOL regulations. After the IER suit was filed, the DOL served notice of intent to audit 126 of the implicated PERM cases wherein no US workers responded to Facebook’s recruitment efforts. Rather than continue litigating the IER case with no US v Facebook: Impact on Corporate Sponsorships The US Department of Justice’s 2021 lawsuit against Facebook may have long-lasting implications for American companies and immigration law. What does it mean for PERM and nonPERM recruitment practices? Employment and immigration compliance specialist Mary Pivec shares her thoughts on the suit with Lawyer Monthly. I
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