United States v. Facebook: Judge Orders that Discovery Continue in PERM Recruiting Discrimination Case
In a precedential decision published March 3, 2021, Administrative Law Judge (ALJ) Andrea R. Carroll-Tipton denied Respondent’s Motion to Stay Discovery, finding that such a stay is not automatic pending a motion to dismiss.
United States v. Facebook
In United States v. Facebook, Inc., 14 OCAHO no. 1386a (2021), Complainant alleged that Respondent had violated the immigration-related unfair employment practices provisions of 8 U.S.C. § 1324b by discriminating against U.S. workers for permanent labor certification (PERM) positions between January 1, 2018, and September 18, 2019. Respondent has yet to file an answer.
On February 18, 2021, Respondent filed a Motion to Dismiss the Complaint and contemporaneously filed a Motion to Stay Discovery Pending a Decision on Its Motion. On March 1, 2021, Complainant filed an Opposition to the Motion to Stay Discovery.
PERM Recruiting Discrimination Case
Arguing in favor of a stay, Respondent cites the breadth of the claims, its perception of the future discovery burden for its client, lack of a legal basis for the claims, and the absence of prejudice to Complainant. Respondent also argues a stay would “promote judicial efficiency,” considering the Court’s “time and resources,” and although it has not yet received the requests, says it expects they will be “overbroad, burdensome, and invasive of individual privacy rights.”
Complainant, in its Opposition, argues that Respondent has not established good cause for its request to stay discovery.
Pursuant to 28 C.F.R. § 68.18(a), discovery “may be limited by the Administrative Law Judge upon [her] own initiative or pursuant to a motion[.]” The ALJ has the discretion to issue a protective order “to protect a person or party from annoyance, harassment, embarrassment, oppression, or undue burden or expense” if the moving party demonstrates “good cause.” 28 C.F.R. § 68.18(c). “[T]he party seeking the protective order has the burden of showing that good cause actually exists.” United States v. Emp. Sols Staffing Grp. II, LLC, 11 OCAHO no. 1234, 4(2014). A demonstration of good cause is fact-specific.
Judge Orders that Discovery Continue
Here, the ALJ found that “Respondent has not met its burden as the moving party because it has not demonstrated the requisite good cause to justify a protective order staying discovery.” She noted that although Respondent cites judicial economy as a rationale, “there are no pending motions before the Court related to discovery which would utilize the Court’s time and resources (other than, of course, the instant motion which gives rise to this Order).”
Finally, the ALJ stated that Respondent is not precluded from filing another motion for requesting a stay, but “it must have evidence that meets the standard for good cause.”