Facebook’s U.S. Worker Discrimination Settlement Should Compel Congress to End H-1B ‘Dual-Intent’ Legal Fiction
Loopholes in the law allow Big Tech and other companies to permanently retain ‘temporary’ foreign workers at the expense of American workers
By Robert Law on October 21, 2021
On Tuesday, the U.S. Departments of Justice (DOJ) and Labor (DOL) announced separate settlement agreements with tech behemoth Facebook regarding charges the company discriminates against U.S. workers in favor of foreign workers. Under the DOJ settlement, Facebook will pay a civil penalty of $4.75 million to the U.S. government and pay up to $9.5 million to the U.S. worker victims of Facebook’s discrimination. Separately, under the DOL settlement Facebook will “conduct additional notice and recruitment for U.S. workers and will be subject to ongoing audits to ensure its compliance with applicable regulations.” DOJ filed the anti-discrimination lawsuit against Facebook at the end of the Trump administration, while the DOL audit was initiated in early 2021.
The DOJ press release brags that the combined maximum financial penalty of $14.25 million is “the largest fine and monetary award that [DOJ] ever has recovered in the 35-year history of the INA’s anti-discrimination provision.” In a quote, Assistant Attorney General Kristen Clarke declares, “Facebook is not above the law. ... This settlement reflects the [DOJ] Civil Rights Division’s commitment to holding employers accountable and eradicating discriminatory employment practices.” This strongly worded press statement sounds good, but significantly overstates the impact of the settlement. Facebook is one of the world’s largest companies, generating $86 billion in revenue in 2020. Quick math reveals that the “largest fine and monetary award” in history is a mere 0.016 percent of Facebook’s revenue. As my colleague David North accurately described the settlement: “Mighty Facebook gets a wrist slap for favoring alien workers.”
Setting aside the paltry financial penalty, the real story is the loopholes in the law that allow companies like Facebook to maintain a constant pipeline of cheap foreign labor instead of hiring or retaining qualified American workers. The opening paragraph of the press release says that DOJ and DOL reached settlement agreements to resolve “claims that Facebook routinely refused to recruit, consider or hire U.S. workers ... for positions it had reserved for temporary visa holders in connection with the [permanent labor certification program (PERM)] process.” (Emphasis added.)
https://cis.org/Law/Facebooks-US-Worker-Discrimination-Settlement-Should-Compel-Congress-End-H1B-DualIntent-Legal
