The Department of Justice (DOJ) has reached a settlement with Apple, Inc. regarding the company’s hiring practices during the test of the labor market for employment-based green card sponsorship that allegedly disadvantaged US citizens and lawful permanent residents.  Apple has agreed to pay $6.75 million in civil penalties and create an $18.25 million back pay fund for eligible victims of their discriminatory hiring practices.  

The DOJ investigated how Apple was conducting the test of the labor market, a necessary step before the company could fill the position with a particular foreign national worker.  All employers, including Apple, are required to carry out certain forms of recruitment established by the Department of Labor (DOL) in order to make sure no qualified, able, and willing US worker is available for the position before they can fill it with a foreign national worker on a permanent basis (this process is also referred to as “PERM” and “green card sponsorship”).  During its investigation, the DOJ discovered that Apple used different, more restrictive recruitment practices for testing the labor market for the PERM process than when it was generally hiring for open positions. For example, Apple did not post these “open” positions on their external website.  Apple also required all applicants, including Apple employees, to submit paper applications by mail for these positions, while online or email applications for other open positions were accepted. These practices resulted in very few or no applications during the test of the labor market.  The DOJ found that Apple’s hiring practices distorted the test of the labor market so that no qualified, able, and willing US workers could be identified, amounting to discriminatory recruitment practices.  

As a result of the settlement, Apple must align its recruitment for the PERM process with its general recruitment process. This includes conducting more expansive searches for all PERM positions, posting available PERM positions on their external job website, accepting electronic applications, making PERM applicants searchable in their applicant tracking system, and training employees on the immigration statute’s anti-discrimination requirement, which prohibits discrimination in hiring, firing, or recruitment based on citizenship and national origin.  

The terms of Apple’s settlement with the DOJ are important for US employers to understand if they want to sponsor their foreign national workers for a green card by testing the labor market.  A good faith effort must be made to identify whether there are qualified, able, and willing US workers to fill the position. 

The settlement agreement can be found here. 

The alert is for informational purposes only. Please contact us if you would like to discuss these developments further.