On November 9, 2023, the U.S. Department of Justice (DOJ) announced that it secured a landmark $25 million agreement with Apple, Inc. (“Apple”) to resolve allegations of discriminatory hiring and recruitment processes employed in relation to the permanent labor certification (“PERM”) program. The PERM program, administered by the U.S. Department of Labor (DOL) and the U.S. Citizenship and Immigration Services (USCIS) allows employers to sponsor foreign workers for lawful permanent residence in the United States. As part of the PERM program, an employer must complete a series of recruitment requirements and obtain a certified labor certification application from the DOL’s Employment and Training Administration that must certify that there are not sufficient U.S. workers who are able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
In February 2019, the DOJ began an investigation of Apple’s recruitment practices in relation to employment positions Apple sought to fill through the PERM program and found that Apple’s recruitment practices deterred protected workers from applying to those positions. The DOJ discovered that Apple did not advertise the employment positions it sought to fill through the PERM program on its public-facing career website, even though its standard practice was to post all other open employment positions on this site. Apple also required all PERM position applicants to mail paper applications — even though the company’s standard practice is to permit electronic applications, and electronic applications submitted for PERM positions were often not considered. These recruitment practices resulted in few or no applications to PERM positions from U.S. workers. The DOJ determined that these practices constituted unlawful discrimination that prejudiced U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status.
The agreement requires Apple to pay up to $25 million in back pay and civil penalties and constitutes the largest award recovered by the DOJ under the anti-discrimination provision of the Immigration and Nationality Act (INA) found at 8 USC § 1324b. Under this agreement, Apple will pay $6.75 million in civil penalties, and $18.25 million will be applied to establish a backpay fund for eligible discrimination victims. The agreement also requires Apple to more closely match its recruitment for PERM positions to its standard recruitment practices, including posting PERM positions on its external career website and accepting electronic applications. This settlement reinforces the importance of employing fair PERM recruitment practices that comply with PERM regulations and highlights the ongoing shift in the DOJ’s enforcement of the PERM program.