Apple Settles DOJ Immigrant Lawsuit, Complying With PERM Not A Defense

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After the Department of Justice investigated Apple for employment discrimination, the company reached a legal settlement despite no allegation that it violated Department of Labor immigration rules. The legal settlement shows that complying with PERM (permanent labor certification program), required for most employment-based immigrants, does not protect companies from government discrimination claims. Facebook settled a similar DOJ lawsuit in 2021.

The Apple Legal Settlement

On November 9, 2023, DOJ announced a $25 million agreement requiring Apple to pay $6.75 million in civil penalties and create an $18.25 million backpay fund for potential discrimination claimants. “The agreement also requires Apple to ensure that its recruitment for PERM positions more closely matches its standard recruitment practices,” according to DOJ. The investigation began in 2019.

“The settlement agreement resolves the department’s determination that Apple violated the INA’s anti-discrimination requirements during Apple’s recruitment for positions falling under the permanent labor certification program (PERM),” according to a DOJ statement. “The department’s investigation . . . found that Apple engaged in a pattern or practice of citizenship status discrimination in recruitment for positions it hired through PERM and that the company’s unlawful discrimination prejudiced U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status. These less effective recruitment practices deterred protected workers from applying to positions that Apple preferred to fill instead with PERM beneficiaries.

“Specifically, the department’s investigation found that Apple did not advertise positions Apple sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on this website. It also required all PERM position applicants to mail paper applications, even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically, as opposed to paper applications submitted through the mail. These less effective recruitment procedures nearly always resulted in few or no applications to PERM positions from applicants whose permission to work does not expire.”

The settlement requires Apple to take specific actions. “Apple will be required to conduct more expansive recruitment for all PERM positions, including posting PERM positions on its external job website, accepting electronic applications, and enabling applicants to PERM positions to be searchable in its applicant tracking system,” according to DOJ. “Apple has implemented some of these measures after the department opened its investigation. Additionally, Apple will train its employees on the INA’s anti-discrimination requirements and be subject to departmental monitoring for the three-year period of the agreement.”

Apple’s Response

Despite the settlement, Apple did not agree with DOJ’s characterization. “Apple contests the accusation, according to the agreement, and says that it believes it was following the appropriate Department of Labor regulations,” reported CNBC. “Apple also contests that any failures were the result of inadvertent errors and not discrimination, according to the agreement.”

“Apple proudly employs more than 90,000 people in the United States and continues to invest nationwide, creating millions of jobs,” an Apple spokesperson told CNBC. “When we realized we had unintentionally not been following the DOJ standard, we agreed to a settlement addressing their concerns. We have implemented a robust remediation plan to comply with the requirements of various government agencies as we continue to hire American workers and grow in the U.S.”

PERM Recruitment Process Raises Company Risks

Companies such as Apple and Facebook have run afoul of DOJ anti-discrimination rules, in part because the PERM process differs from regular recruitment. Under DOL regulations, PERM wants U.S. workers to respond to advertisements so employers can “test” the labor market, not as a vehicle for recruiting U.S. workers. The Department of Labor established the PERM process without a requirement to provide an electronic resume response option for applying to the DOL-mandated advertisements.

U.S. immigration law does not require employers to test the labor market by placing advertisements to show eligible U.S. workers are not available to fill the job. The Department of Labor invented this regulatory requirement.

“Although immigration law requires ‘labor certification’ for most employer-sponsored immigrants, the Department of Labor has created the current system out of whole cloth,” according to a National Foundation for American Policy (NFAP) report. Attorney Gary Endelman has noted, “There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise.” When the 1965 Immigration Act became law, Senator Edward Kennedy (D-MA) indicated DOL could use available statistical data on employment.

In 2021, a Facebook spokesperson said in a statement about the company’s settlement with DOJ, “While we strongly believe we met the federal government’s standards in our permanent labor certification (PERM) practices, we’ve reached agreements to end the ongoing litigation and move forward with our PERM program, which is an important part of our overall immigration program.”

What The Apple Legal Settlement Means For Employers

“This appears very similar to the Facebook settlement,” said Noah Klug of the Klug Law Firm. “I think it’s important to remember that this was not a settlement with the Department of Labor, which administers the PERM program. This was a settlement with the Department of Justice Civil Rights Division’s Immigrant and Employee Rights Section (IER), which is responsible for enforcing the Immigration and Nationality Act’s anti-discrimination provisions.

“The settlement announcement explains that the purpose of the settlement was ‘to resolve allegations that Apple illegally discriminated in hiring and recruitment against U.S. citizens.’ It was not regarding an allegation that Apple was not complying with the PERM rules. DOJ felt that Apple was discriminating against U.S. citizen workers. It is always unlawful to discriminate against U.S. citizen workers in hiring practices, including during the PERM process (unless a statutory exception applies).”

Klug believes the Apple settlement shows employers need solid employment law attorneys to combine with their immigration legal counsels. That would ensure company practices for PERM applications comply with federal, state and local employment laws, particularly those related to employment discrimination.

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