Apple Inc. has agreed to pay $25 million to the U.S. Department of Justice Civil Rights Division, Immigrant and Employee Rights Section, to settle claims that it discriminated against U.S. workers in recruiting and hiring and, instead, favored foreign workers on temporary visas through the Program Electronic Review Management, better known as PERM, labor certification process.

The settlement will end an investigation that began in 2019 and is “the largest award that the department has recovered under the anti-discrimination provision of the Immigration and Nationality Act,” according to the DOJ.

Employers are required to test the market for qualified U.S. workers as part of the PERM application seeking labor certification for foreign workers. The labor certification requires proof that U.S. workers were not able, willing, qualified, and available to accept the job opportunity for which the employers seek to employ foreign workers.

The anti-discrimination provisions of the Immigration and Nationality Act also apply to PERM (as well as all other) recruitment. Discrimination based on citizenship status is prohibited if the victim is a “protected individual,” which includes citizens or nationals of the United States, persons granted permanent resident status (green card), refugees, and others.

According to the DOJ, Apple engaged in discriminatory recruitment and hiring procedures based on citizenship status in connection with recruitment under the PERM program.

The DOJ’s findings

According to its press release, the DOJ 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.

More specifically, the DOJ found that the company failed to advertise PERM positions on its website and required applicants for PERM positions to submit paper applications through the mail even though it accepted electronically submitted applications for other positions. As a result, according to the DOJ, Apple received “few or no applications to PERM positions from applicants whose permission to work does not expire.”

In summary, the DOJ found that Apple favored foreign workers applying under the PERM program by applying stricter standards for U.S. applicants and thus discriminated against U.S. applicants based on citizenship, in violation of the INA.

Terms of the settlement

Apple will pay $6.75 million in civil penalties and establish a fund for $18.25 million to provide back pay to eligible victims. Apple has selected an independent claims administrator, approved by the DOJ, to administer this back pay process.

In addition, Apple has agreed to conform its recruitment policies and practices for PERM positions to be consistent with the INA’s anti-discrimination provisions and its own standard practices, to provide employee training for its employees on these anti-discrimination provisions, and to be monitored by the DOJ for the three-year period of the agreement.

Tough lesson

The Apple settlement is an important reminder to employers that PERM recruitment is no defense against a DOJ claim of discrimination based on citizenship status. An employer’s policies and procedures regarding PERM recruitment must not deviate from its standard recruitment procedures to the detriment of U.S. worker applicants. Employers recruiting under PERM must meet PERM requirements and follow their standard recruitment practices and procedures.

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