Department of Justice (DOJ) Settlement Case Places Stipulations on Radio Advertisements for PERM

From USADNEWS Volume XVII, Fall Issue

The Department of Justice (DOJ) announced in August that it had reached a $3.2M settlement with OpenAI OpCo LLC and its subsidiary Statsig, Inc. (together referred to as OpenAI) related to allegations that both companies violated the rights of U.S. workers in the course of their recruitment for a PERM labor certification application by showing a preference for foreign workers.

The DOJ found that OpenAI deviated from their standard forms of recruiting for positions that were being advertised in connection with labor certification applications. For instance, PERM related positions were not posted on their company’s external job website as was standard for other openings, and they required applicants to reply by mail instead of allowing applicants to apply by email or online, which was typical of other postings.

The settlement also draws particular attention to the fact that the company advertised “on the radio late at night.” Under the regulations at 20 C.F.R. § 656.17(e)(ii)(J), the use of radio and television advertisements is permitted as one of three additional forms of recruitment for professional positions. However the regulations do not provide any requirements or guidance on how many spots should be run or when they should be aired.

The issue at hand in the DOJ settlement is whether employers are conducting PERM related recruitment in good faith in order to conduct an accurate test of the labor market, or whether they are attempting to undermine the intent of the program by merely checking off boxes on an application. Are the recruitment steps in line with the company’s standard forms of recruitment advertising? Is the recruitment being conducted in a way to attract, rather than minimize, responses from U.S. workers?

The OpenAI case marks the thirteenth such settlement the DOJ has reached under its Protecting U.S. Workers Initiative, which was reinstituted in 2025. It’s clear that the Department is bringing additional scrutiny to bear on labor certification applications and the manner in which recruitment is conducted, beyond whether it satisfies the technical requirements under the DOL regulations.

In response to this latest challenge, USADWEB has discussed scheduling guidelines with our radio vendors and we have put in place an amended timeframe for airing radio advertisements. Unless directed otherwise, our default framework for radio quotes will be 2 spots to air anytime between 6am and 7pm. Clients can always request more specific dayparts, but the stations may charge a premium rate. We will always defer to our clients’ direction if they prefer to run only one spot instead of two.

USADWEB has also observed that State Workforce Agencies (SWA) may become more proactive in questioning the legitimacy of job postings especially if the posting does not provide a way to apply online or if the posting is not also listed externally on the company’s website.