The Department of Justice (DOJ) announced last week that it had entered into a Settlement Agreement with Apple Inc. (Apple) based upon the finding by the DOJ’s Immigrant and Employee Rights Section (IER) that Apple had engaged in discriminatory recruitment and hiring practices related to the permanent labor certification (PERM) program.

What Does the DOJ Claim Apple Did Wrong?

The IER found that, beginning no later than January 1, 2018, and continuing until at least December 31, 2019, Apple engaged in a pattern or practice of discriminatory PERM recruitment based on citizenship status. The IER concluded that Apple preferred workers holding nonimmigrant status for PERM related positions based on their citizenship status instead of qualified and available U.S. applicants in violation of federal law. The IER noted that Apple departed from its “standard recruiting process” for PERM-related recruitment and followed different procedures designed to favor the nonimmigrant beneficiary of the PERM application and deter U.S. applicants (i.e., U.S. citizens, U.S. nationals, lawful permanent residents, and asylees and refugees) from applying for employment. The IER commented in this regard that Apple did not advertise positions on its external job website and required all applicants to mail paper applications, not allowing electronic applications. These “less effective” recruitment procedures, per the language of the Settlement Agreement, deterred U.S. applicants from applying and “nearly always” resulted in the receipt of no or very few mailed applications for PERM-related job positions.  Finally, the IER found that Apple also failed to consider certain internal applicants for PERM-related positions if they only submitted their application electronically as opposed to mailing an application.

How is Apple Being Punished?

The Settlement Agreement requires Apple to pay up to $25 million in backpay and civil penalties; the DOJ notes that this is the largest award that it has recovered under the anti-discrimination provision of the Immigration and Nationality Act. The award is certainly far larger than the close to $14 million fine in backpay and civil penalties imposed on Facebook for similar PERM-related violations in 2021.

Apple is also required under the Settlement Agreement to draft a policy outlining the steps governing its PERM recruitment process. This policy must prohibit citizenship status discrimination in Apple’s PERM recruitment process and will contain the following obligations on the part of Apple:

• All PERM-related position postings will be assigned a requisition number associated with a job profile group
• All PERM-related positions must be posted on the external and internal Apple job websites
• Electronic applications for PERM-related positions must be accepted through Apple’s external and internal job websites
• Apple will not require applicants to apply through mail for PERM-related positions instead of applying electronically
• Apple will ensure that the online application functionality is enabled to allow applicants for PERM-related positions to apply electronically through state workforce agency websites, if there is such an option
• Apple will enter into its applicant tracking system all applicants for PERM-related positions who apply via Apple’s internal and external websites, enabling such applicants to be searchable in the same manner as applicants for non-PERM-related positions at Apple, and allowing Apple’s recruiting team to identify, consider, and/or hire such applicants for Apple job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied
• Apple will conduct a good faith review of the qualifications of applicants for PERM-related positions in the same manner that qualifications are assessed outside the PERM context, and ensure that no applicant is discriminated against based on citizenship status
• Apple will train its employees on federal anti-discrimination requirements and will be subject to DOJ monitoring for three years

Does This Mean that All Employers Filing PERM Labor Certification Applications Have to Establish a Similar Policy?

The settlement terms Apple and the DOJ agreed upon do not redefine PERM recruitment guidelines that any other employers are required to follow, but this settlement does illuminate U.S. government policy with respect to hiring practices. Therefore, it is prudent for employers to evaluate their PERM recruitment practices in light of this settlement. It is clear that the DOJ views certain recruitment practices as being inherently discriminatory, and employers conducting recruitment in support of PERM applications should avoid these practices or risk a similar DOJ investigation. Such practices include, most notably, requiring applicants to apply by mail rather than electronically.  It is not clear at the moment how aggressively the Department of Labor will attempt to enforce the recruitment obligations imposed on Apple on other companies filing PERM applications, but this should become apparent in early 2024 when applications filed through the FLAG portal and using the new version of Form ETA-9089 start being adjudicated.