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Facebook in more trouble for favoring foreign workers on visa

(BUSINESS NEWS) Facebook has continued to be in hot water this year – this time getting sued by the DOJ for discrimination of American workers in favor of visa workers.

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Visa employee on a laptop looking out the window.

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.)

What’s next?

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.

Lisa Wyatt Roe is an Austin writer and editor whose work has been featured on CNN.com/Travel, in Texas Parks & Wildlife Magazine and in the book “Seduced by Sound: Austin; 100 Musicians on Why They Make Music.” Travel and live music feed her soul. Volunteering with refugees feeds her sense of purpose. And making friends laugh feeds her deep (yet possibly sad) need to get all the laughing emojis on Facebook.

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1 Comment

1 Comment

  1. jake leone

    December 14, 2020 at 3:31 pm

    Your readers need to understand that Facebook found hundreds of qualified Local-American applicants for much tougher tech jobs. Facebook refused to forward these better qualified Americans to the managers who were hiring the foreign workers, they did this exclusion deliberately. And that is why this is a clear case of discrimination based upon National Origin.

    Facebook lied on Federal Forms when it said it made a good faith effort, Facebook make a bad faith effort. And we know this because, facebook refused the San Francisco Chronicle’s FREE offer to post these jobs on the Chronicle website (all Facebook had to do was say “yes” instead of “no”), at the time the Chronicle was posting the jobs in print. And also, as you have pointed out, Facebook has extensive public company job board, but Facebook never put these jobs on that board.

    This FAKE/PERM process is well documented, and is quite scandalous. We need to fix the PERM process before we talk about getting rid of the diversity of the Green Card system. Mike Lee’s bill is a massive dentriment and clearly a give away to the absolutely bigoted hiring practices of companies in Silicon Valley. Fix the PERM process, and you will fix the Green Card back log very quickly, and more Americans will be able to get into a tech job. Again, Facebook had hundreds of qualified candidates, that it could not hire, into much tougher tech positions than the ones that were involved in these FAKE/PERM jobs.

    The big lie that tech companies can’t find qualified workers is fully exposed in this government indictment. Facebook was cooperating but has since gone silent. Cleary, this didn’t fully register what the implications of this massive fraud would be, otherwise I think they would not have cooperated with the government. Now that they have, it is too late. And civil lawsuits will follow.

    The process that Facebook gamed is called the PERM process. The PERM process can be redone, every 6 months, until the employers luck out (or deliberately avoid looking as is the case with FACEBOOK) and say (really lie) on Federal forms they couldn’t find an American.

    Literally, if an employer over a 10 year period, found plenty of qualified Americans to fill the foreign workers position, the employer can still refuse to hire an American. Because the foreign worker is allowed to renew their H-1b visa, indefinitely while doing the PERM process (in this case repeating the PERM process 2x a year, for 10 years).

    Meaning, that there is no actual equality in the hiring process when employers undergo PERM process for a foreign worker. The foreign worker can literally displace a better qualified American for a job on U.S. soil, forever.

    And Facebook has already been shown to do this, 2600+ times, over less than a 2-year period, covered by this investigation. Read the indictment, it’s online.

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Business News

Unify your remote team with these important conversations

(BUSINESS NEWS) More than a happy hour, consider having these poignant conversations to bring your remote team together like never before.

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Woman working in office with remote team

Cultivating a team dynamic is difficult enough without everyone’s Zoom feed freezing halfway through “happy” hour. You may not be able to bond over margaritas these days, but there are a few conversations you can have to make your team feel more supported—and more comfortable with communicating.

According to Forbes, the first conversation to have pertains to individual productivity. Ask your employees, quite simply, what their productivity indicators are. Since you can’t rely on popping into the office to see who is working on a project and who is beating their Snake score, knowing how your employees quantify productivity is the next-best thing. This may lead to a conversation about what you want to see in return, which is always helpful for your employees to know.

Another thing to discuss with your employees regards communication. Determining which avenues of communication are appropriate, which ones should be reserved for emergencies, and which ones are completely off the table is key. For example, you might find that most employees are comfortable texting each other while you prefer Slack or email updates. Setting that boundary ahead of time and making it “office” policy will help prevent strain down the road.

Finally, checking in with your employees about their expectations is also important. If you can discuss the sticky issue of who deals with what, whose job responsibilities overlap, and what each person is predominantly responsible for, you’ll negate a lot of stress later. Knowing exactly which of your employees specialize in specific areas is good for you, and it’s good for the team as a whole.

With these 3 discussions out of the way, you can turn your focus to more nebulous concepts, the first of which pertains to hiring. Loop your employees in and ask them how they would hire new talent during this time; what aspects would they look for, and how would they discern between candidates without being able to meet in-person? It may seem like a trivial conversation, but having it will serve to unify further your team—so it’s worth your time.

The last crucial conversation, per Forbes, is simple: Ask your employees what they would prioritize if they became CEOs tomorrow. There’s a lot of latitude for goofy responses here, but you’ll hear some really valuable—and potentially gut-wrenching—feedback you wouldn’t usually receive. It never hurts to know what your staff prioritize as idealists.

Unifying your staff can be difficult, but if you start with these conversations, you’ll be well on your way to a strong team during these trying times.

This story was first published in November 2020.

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Business News

How to apply to be on a Board of Directors

(BUSINESS NEWS) What do you need to think about and explore if you want to apply for a Board of Directors? Here’s a quick rundown of what, why, and when.

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board of directors

What?
What does a Board of Directors do? Investopedia explains “A board of directors (B of D) is an elected group of individuals that represent shareholders. The board is a governing body that typically meets at regular intervals to set policies for corporate management and oversight. Every public company must have a board of directors. Some private and nonprofit organizations also have a board of directors.”

Why?
It is time to have a diverse representation of thoughts, values and insights from intelligently minded people that can give you the intel you need to move forward – as they don’t have quite the same vested interests as you.

We have become the nation that works like a machine. Day in and day out we are consumed by our work (and have easy access to it with our smartphones). We do volunteer and participate in extra-curricular activities, but it’s possible that many of us have never understood or considered joining a Board of Directors. There’s a new wave of Gen Xers and Millennials that have plenty of years of life and work experience + insights that this might be the time to resurrect (or invigorate) interest.

Harvard Business Review shared a great article about identifying the FIVE key areas you would want to consider growing your knowledge if you want to join a board:

1. Financial – You need to be able to speak in numbers.
2. Strategic – You want to be able to speak to how to be strategic even if you know the numbers.
3. Relational – This is where communication is key – understanding what you want to share with others and what they are sharing with you. This is very different than being on the Operational side of things.
4. Role – You must be able to be clear and add value in your time allotted – and know where you especially add value from your skills, experiences and strengths.
5. Cultural – You must contribute the feeling that Executives can come forward to seek advice even if things aren’t going well and create that culture of collaboration.

As Charlotte Valeur, a Danish-born former investment banker who has chaired three international companies and now leads the UK’s Institute of Directors, says, “We need to help new participants from under-represented groups to develop the confidence of working on boards and to come to know that” – while boardroom capital does take effort to build – “this is not rocket science.

When?
NOW! The time is now for all of us to get involved in helping to create a brighter future for organizations and businesses that we care about (including if they are our own business – you may want to create a Board of Directors).

The Harvard Business Review gave great explanations of the need to diversify those that have been on the Boards to continue to strive to better represent our population as a whole. Are you ready to take on this challenge? We need you.

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Business News

Age discrimination lawsuits are coming due to the pandemic – don’t add to the mess

(BUSINESS NEWS) Age discrimination is spreading despite intentions to help, and employers need to know how to proceed in this unprecedented era.

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Ageism void

Before the pandemic, age discrimination was prevalent in workplaces. The EEOC reports that in 2018, about 6 out of 10 workers aged 45 years and older say they experience discrimination on the job.

A 2015 survey found that 75% of older workers found age an obstacle in job hunting. COVID-19 made the situation much worse.

Not only do older workers deal with discrimination, but they are at a higher risk of developing serious complications from the virus. According to the Society for Human Resource Management, older workers were hit the hardest by job loss during the pandemic, which is unusual during a recession. As offices reopen, employers need to be careful to avoid age discrimination in rehiring.

Lawyers expect age discrimination lawsuits to increase.

Last September, Harris Meyer published an article in the ABA Journal that predicted a “flood of age discrimination lawsuits” from the pandemic. Employers who have good intentions by keeping older employees out of the workplace to protect their health are still guilty of age discrimination.

What can employers do to avoid age discrimination?

It may be fine line between making sure you don’t discriminate based on age while offering ADA accommodations. The first thing employers should do is to know what laws apply based on their location. Some states exempt employees over 65 from returning to the workplace out of safety fears, meaning that those employees can still get unemployment. Other states are cutting benefits if employees don’t return to work, regardless of age.

There are some jurisdictions that have passed legislation about which workers have the right to be recalled. Next, review your own policies and agreements with laid off and terminated employees. You may want to consult legal counsel to make sure you’re covering your bases.

As you rehire, whether you’re bringing back former employees or hiring new team members, do not make hiring decisions based on age. Keep good documentation about your decisions to terminate certain employees. If you are citing poor performance, make sure to have a record of that. Don’t terminate older employees who have bigger salaries just because of lower sales. Monitor your words (and that of your hiring team) to avoid bias in hiring and firing.

Provide accommodations or not?

According to the SHRM, “Workers age 40 and older are protected from bias by the Age Discrimination in Employment Act; however, that law doesn’t require employers to make accommodations for safety concerns.”

Still, employers can provide flexibility for workers, but it largely depends on the type of job. Reaching an accommodation for an office worker will be much easier than accommodating a sanitation worker.

Employers should assume that workers aged 40 and older can return to work. When the need for help is raised by the employee, enter negotiations for accommodations. Don’t initiate the conversation, and absolutely avoid any references to age.

Know that the environment may change as the pandemic continues to affect workers.

Be thoughtful about your hiring practices moving forward to avoid costly litigation from age discrimination.

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