OCAHO Denies Facebook's Motion to Dismiss

OCAHO, June 2, 2021

"On December 3, 2020, Complainant, the United States, filed a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO) alleging that Respondent, Facebook, Inc. (Facebook), violated 8 U.S.C. § 1324b by discriminating against “U.S. workers” in its hiring and recruiting practices related to positions it earmarked for the permanent labor certification (PERM) process between January 1, 2018 and September 18, 2019.1  [fn1: Complainant relies upon both 8 U.S.C. § 1324b(a)(3) and 20 C.F.R. § 656.3 to define “U.S. workers.”] ... To the extent Complainant seeks to demonstrate that Respondent has engaged in an unfair immigration-related employment practices as proscribed in 8 U.S.C. § 1324b, the Court has and will exercise exclusive subject matter jurisdiction. ... The Complaint describes a scheme of set-asides of certain positions for only temporary visa holders and ineffective methods of recruitment designed to solicit minimal, if any, response from individuals outside the targeted group of temporary visa holders. Compl. 2–3; Opp’n 2. The Complaint also alleges that to the extent U.S. workers could be in contention for these positions, they are “not considered” because of their citizenship status. Compl. 2; Opp’n 6. In totality, the Complaint raises an inference of discrimination as the Complaint contains facts which “reasonably suggest a nexus between Respondent’s decision[s]” related to divergent recruitment tactics and the citizenship status of affected U.S. workers. Montalvo, 14 OCAHO no. 1350 at 5 (2020) (citing Kelly Legal Services, 12 OCAHO no. 1282 at 9). As the Court has previously held, allegations of manipulating the hiring practice to disqualify individuals based on citizenship, meet the legal standard in this forum for stating a claim upon which relief can be granted. See Montalvo, 14 OCAHO no. 1350 at 5. For the reasons outlined above, the Court finds the Complaint states a claim upon which relief can be granted. ... Respondent’s Motion to Dismiss is DENIED."