After the Department of Justice investigated Apple
The Apple Legal Settlement
The DOJ announced a $25 million agreement on November 9, 2023, 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,” according to a DOJ statement. The Department of Justice alleged that Apple used “less effective recruitment practices” and that this deterred U.S. workers from applying for the positions.
“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,” according to DOJ. The Department of Justice alleged the company did not consider some applications for PERM positions submitted electronically by Apple employees.
The settlement requires Apple “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.” The Department of Justice said Apple already has implemented some of the measures in the agreement, and the department will monitor the company for three years.
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 report.
“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,” according to a history of labor certification written for Interpreter Releases by Attorney Gary Endelman. 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 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. He points out the Apple settlement was with the Department of Justice Civil Rights Division’s Immigrant and Employee Rights Section, responsible for enforcing the Immigration and Nationality Act’s anti-discrimination provisions, not with the Department of Labor, which administers the PERM program.
The DOJ press statement and the legal settlement do not say DOL investigated Apple for PERM violations.
“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,” noted Klug. He said it is unlawful for companies to discriminate against U.S. citizen workers in hiring practices, including during the PERM process, unless a statutory exception applies.
Attorney Cyrus Mehta is concerned the Apple settlement could prompt some employers to stop sponsoring foreign nationals for permanent residence. He said the penalties paid by Apple and Facebook would ruin smaller employers.
“The safest course is for employers to hew as closely as possible to their non-PERM recruitment practices,” said Mehta. “Thus, while it is lawful for employers to ask applicants to send resumes only by postal mail under the PERM regulations, if the employer otherwise allows applicants to send their resumes electronically, the employer should be consistent and require applicants even responding to PERM recruitment to send their resumes electronically.”
He said employers are caught between the conflicting requirements of two federal agencies, and complying with one agency’s requirement may result in liability for the employer when complying with the requirement of the other agency.
“The Apple settlement highlights the disconnect between real-world recruitment practices and the artificial nature of the mandated recruitment steps under PERM,” said Dagmar Butte of Parker Butte and Lane. “This is especially true when you consider that most modern recruitment practices did not exist when PERM was rolled out in 2005.”
Butte notes that even if the PERM recruitment structure is an invention of DOL, the underlying good faith test of the labor market seems to require treating PERM positions no less favorably in the breadth of recruitment than regular positions. “I tell my clients to remember that this system was designed to protect U.S. workers, and not to facilitate hiring foreign nationals and they should view recruitment from that perspective. I also always ask them to tell me how they would recruit for the job if PERM were not a part of the process and make that part of the optional steps for professional positions.”
Noah 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.