When the U.S. Department of Justice sued Facebook last December for intentional discrimination against U.S. applicants, it issued a warning to others: "Our message to all employers — including those in the technology sector — is clear: you cannot illegally prefer to recruit, consider, or hire temporary visa holders over U.S. workers."

DOJ's message echoed last month when the agency announced a settlement resolving its claims with the social media giant. Facebook will pay a $4.75 million civil penalty to the U.S. It will also pay up to $9.5 million to the applicants impacted by its alleged discrimination.

The allegations against Facebook may offer employers some lessons as they attempt to heed DOJ's warning. The biggest lesson, according to Norris McLaughlin Member Raymond G. Lahoud, is that employers must keep recruiting efforts consistent among applicants, no matter their citizenship status.

Unpacking the claims against Facebook

In its December 2020 lawsuit, DOJ claimed "Facebook refused to recruit, consider, or hire qualified and available U.S. workers for over 2,600 positions that Facebook, instead, reserved for temporary visa holders it sponsored for permanent work authorization."

The agency claimed that between January 2018 and September 2019, Facebook reserved jobs for temporary visa holders through the U.S. Department of Labor's Permanent Labor Certification Process. During this time, Facebook did not hire anyone for the 2,606 PERM-related roles except for PERM beneficiaries.

According to DOJ's lawsuit, Facebook's recruiting methods for these positions deviated from the procedure it used for other roles. The adjusted methods were "designed to deter U.S. workers from applying to certain positions," DOJ said. The lawsuit claimed Facebook required, for example, that applications be submitted by mail only. Facebook also did not post about certain job vacancies on its career website. And it refused to review applications submitted by workers in the U.S.

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