While the latest big news on the US government vs Facebook front is the Dec. 9 antitrust suits that target the social media giant’s acquisition of Instagram and WhatsApp, just a week earlier the big news was an attack from another flank. On Dec. 3 the Department of Justice accused Facebook of discriminating against U.S. citizens in favor of hiring foreign workers on visa.
Let’s just say business groups, especially in tech, are not happy about this. The D.O.J.’s lawsuit could have a huge impact on the tech industry, which has long relied on hiring foreign workers who have temporary work visas that they can later convert to permanent visas (aka, green cards).
Here’s what you need to know.
Why did D.O.J. sue Facebook?
D.O.J. says it’s protecting American and other authorized workers against discrimination and trying to save American jobs.
According to the press release: “Facebook intentionally created a hiring system in which it denied qualified U.S. workers a fair opportunity to learn about and apply for jobs that Facebook instead sought to channel to temporary visa holders Facebook wanted to sponsor for green cards.”
What is Facebook’s response?
“Facebook has been cooperating with the D.O.J. in its review of this issue, and while we dispute the allegations in the complaint, we cannot comment further on pending litigation,” said Facebook spokesman Andy Stone.
How did Facebook allegedly discriminate?
The D.O.J. says that, from January, 2018, to September, 2019, Facebook used special recruiting methods that in effect reserved more than 2,600 jobs for foreign workers who hold temporary work visas, mostly H-1Bs. The suit alleges that jobs were posted only in print outlets, not on Facebook’s careers website, which would cast a wider net. Also, applicants had to apply by mail, not online like for other jobs – both of which created a pool of pre-selected candidates based on immigration status.
So the allegation is that Americans couldn’t apply for jobs they didn’t know about, which let Facebook effectively game the system by meeting the legal requirements of posting jobs and saying that no or few qualified U.S. citizens applied – meaning they could keep employees who had already been working there for between 3 and 6 years.
Why is this illegal?
The D.O.J. says Facebook violated the Immigration and Nationality Act, which “prohibits employers from discriminating against U.S. citizens and other work-authorized individuals
based on their citizenship status or national origin.”
What does the lawsuit ask for?
The suit asks for “civil penalties” (aka, money), back pay for U.S. workers who were denied employment because of the alleged discrimination, and changes to Facebook’s hiring procedures. (One thing that’s not clear is which U.S. workers would be included in back pay and how they would show they lost out on a job they didn’t know about.)
What’s behind the suit?
Short answer: It probably depends on your politics.
It could be part of the Trump administration’s continuing attack on immigration. It could be “techlash,” part of the Trump administration’s continuing attacks on social media giants. Or it could be the Trump administration’s fight to save jobs for Americans in a time of high unemployment, as well as to prevent companies from taking advantage of relatively cheap labor that depresses wages for U.S. citizens.
How does the work visa system work?
Most temporary work visas come through the H-1B system, but there are also H-2A, H-2B, and F-1 visas. After an employee has been in the job 3 years, the employer can ask for the temporary visa to convert to a green card, which makes the holder a permanent lawful resident. However, employers must demonstrate that they were not able to find qualified U.S. workers.
The H-1B visa program has been embroiled in an ongoing battle this year, with President Trump attempting to impose bans, caps, and new restrictions and courts knocking down those attempts. So things like how many visas are awarded, how workers are chosen, and regulations on minimum salaries and education levels designed to allow only higher-skilled workers – that all could change seemingly at any time. (Check out Investopedia for a fuller explanation of the ins and outs.)
Who knows? It’s wait and see on whether the new administration of President-Elect Joe Biden will address the lawsuit, although he has pledged to undo Trump’s immigration policies.