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US IT Worker Files Hiring Lawsuit Against Infosys, Class Action Proposed
itwbennett writes "Brenda Koehler is a VMware-certified professional network engineer with a master's degree in information systems and 17 years of experience. You might think that would qualify her for a lead VMware/Windows administrator, but Indian outsourcing firm Infosys apparently didn't. And Koehler has filed a lawsuit against the company, alleging that Infosys ignored her qualifications and eventually hired a Bangladeshi worker to staff a position she was qualified for. Koehler and her lawyers are asking the U.S. District Court for the Eastern District of Wisconsin to allow a class-action lawsuit against Infosys, with 'thousands' of potential plaintiffs in the case, according to the lawsuit, filed Thursday."
Infosys is notorious for abusing the visa system to bring in totally unqualified and clueless south asians to be billable load on the U.S. system. We're talking people that couldn't even make the helpdesk script-reading sytem you get when you call tech support.
Homeland security and Justice department have an intricate investigation since 2012 ongoing on Infosys' fraud and abuse of visa system.
There is lots of discrimination in hiring. Much of it has been studied and documented. Other parts haven't gotten as much attention. She never claimed she was "more" qualified, just that when the position was available, she wasn't hired, and when the position was filled, it was filled with someone who can't take the role unless "no other qualified candidate could be found". Which implicitly states she wasn't qualified, and bears no comparison between her and the person hired. He couldn't be considered unless she was already rejected as "unqualified". Not "qualified, but undesirable".
The rules for H1-B are well defined. Based on a glance, the facts seem to be on her side.
Learn to love Alaska
Standing up for certain legal rights is a legally-protected quality in an employee, and employers can't retaliate against them for that.
There were a lot of sex bias cases in which the employee didn't have enough evidence to prove the bias, but they did have enough evidence to prove retaliation, and they won the case.
You can't discriminate against people who refuse to work below the minimum wage, for example.
In addition, if they did preferentially hire Asians for some reason -- on the assumption that Asians were more deferential, for example -- that could be racial discrimination. If they found Infosys managers saying that clearly in emails, they'd win.
The article indicates they did not offer her a job at any price. Also, the H1-B laws require "market rates" not "below market rates so we can claim no local talent was suitable, despite 10,000 applicants that were qualified on paper)".
Learn to love Alaska
I know it's difficult for some to understand, but THERE IS NO SUCH THING AS "REVERSE" DISCRIMINATION. There is only discrimination, regardless if you are white, black, brown, male, female, or transgender.
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Under H-1B rules, they still must hire an American if they can find one that is qualified, over a non-American.
now we need to go OSS in diesel cars
One important note about the H1B program that rarely gets any press is that while there is a legal requirement to hire qualified citizens before considering an H1B holder, there is zero money allocated to enforce that requirement.
It only gets enforced in cases like this where someone who was blatantly passed over in favor of an H1B holder who pushes on their own to see it enforced. To the best of my incomplete knowledge there has been a total of 1 enforcement actions by the DoJ regarding this sort of rule breaking during the entire ~2 decades of H1B visas.
When information is power, privacy is freedom.
THERE IS NO SUCH THING AS "REVERSE" DISCRIMINATION
Well if you've got a better way of referring to "discrimination against someone based on the fact that someone of their race, but not directly related to them, once discriminated against someone of my race, who was also not directly related to me", then I would love to hear it. Because I think "reverse discrimination" works just fine for that.
There is nothing illegal about not hiring someone with long hair.
Many on this site feel entitled not to be filtered out but that is a fact of life. Hiring is highly risky.
What is illegal is not hiring someone based on sex, gender, religion, disability, race, being gay (1/3 of the states have this), or any other reason based on a civil rights violation. Dressing and looking unprofessional does not go under any of these critera.
Being a woman or American is not why she was not hired. From the looks of it she is over qualified and therefore expensive and would be a risk of her leaving if they made her an offer but I could be mistaken. Impossible to prove and sorry folks but being expensive is not protected and a valid reason to filter someone.
http://saveie6.com/
This lawsuit is about a job that is based in the US and so must follow US laws. The worker would not be relocating to India.
If she was "overqualified" then there's even more reason why the H1B shouldn't have gotten the job. In this case, it is illegal to "filter" her.
The law is quite clear - you can't bring someone in on an H1B unless an already work legal qualified candidate cannot be found. If she's overqualified, she's still qualified. Expensive or not, it would be illegal to hire an H1B over her.
Just to make sure you see the right article, I searched it myself. Here's one of the first ones that interviews the whistle blower who started the ball rolling on holding RBC to task for the issue: http://www.cbc.ca/news/canada/british-columbia/story/2013/04/05/bc-rbc-foreign-workers.html
I do not fail; I succeed at finding out what does not work.
Nonsense. I've met some brilliant people and most of them have been quite socially adept. You don't have to put up with crappy behavior to get a great developer. Doesn't mean they are going to wear a 3 piece suit, but you can get an actual, reasonable human being that does great work.
This case has nothing to do with "must hire qualified person" as your slippery slope suggests, but instead with "can't hire someone on an H1B visa if a qualified American can be found". Basically H1Bs allow companies to import foreign labor if, and only if, qualified Americans aren't available. Full stop.
If I am qualified and apply for the job you are no longer legally permitted to hire someone on an H1B visa. You can hire any *other* American, but not a foreigner here on a visa specifically tied to this job. The idea being that the visas exist to import talent, not just to reduce wages.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Exactly. They could have not liked her attitude at the interview, the color of her shoes, the way she said "Hi, I'm here for the interview", or a million other things.
We do know it probably came down to dollars. She wanted Y, they were willing to pay B. No company or organization is required to hire the best candidate. They're only not allowed to discriminate on the list.
I've been not hired before, because when they finally let loose with a number, it was insulting. Not the "I'm worth a million, I'll settle for $200k". It was $20/yr, no benefits. I don't know why they even bothered offering it. After a few in that ballpark, from companies who couldn't afford ... well ... anything, I start off the conversation with "what's your budget, so I'll know if we should even continue the conversation."
From the article, "High-tech companies claim they can't find Americans to fill U.S jobs, when, in fact, they are rejecting talented Americans..."
Of course they are. Why give her a 6 figure salary, when you can get someone at a weak 5 figures?
Serious? Seriousness is well above my pay grade.
It's in the court documents, which are linked from TFA. http://www.pbclaw.com/2013/08/02/proposed-class-action-complaint-filed-against-infosys-for-failure-to-hire-national-origin-discrimination/
D. Particular Instances of Discrimination
69. Numerous instances of discriminatory intent have come to light.
70. While working on the assignment at Vinings, Georgia in December 2008, Infosys employee-whistleblower Jay Palmer claims that another Infosys employee wrote “Americans cost $,” and “No Americans/Christians” on a whiteboard.
71. Palmer claims that he received a couple of telephone calls in which the caller asked, “Why are you doing this, you stupid American, we have been good to you.” While Palmer does not know who made these calls, they came after he began to complain about Infosys’s misuse of the visa system.
72. On February 28, 2011, while Palmer was working on a project in Alpharetta,Georgia, he claims that he found a typewritten note on his keyboard, and a Word document on his computer, both of which stated, “Just leave your [sic] not wanted here hope your journey brings you death stupid american.”
73. On April 21, 2011, Palmer claims that he received an e-mail on his personal e-mail account stating, “if you make cause for us to sent [sic] back to india [sic] we will destroy you and your family.
74. Palmer claims that he was called a stupid American on one occasion by two Infosys employees.
75. Mr. Palmer brought these issues to the attention of Infosys, but Infosys did nottake significant steps to investigate or prevent future issues
76. During Mr. Palmer’s lawsuit, another employee also testified that Americans generally were made to feel unwelcome at Infosys.
If we put everyone under this light then would a McDonalds have to hire anyone with a college degree? What about a retired CEO? The turnover would be disasterous and nothing could function.
If they applied for entry positions that McDonald's was trying to bring in H1B workers to fill, yes, they would have to hire them first.
The point is not that the company has to hire overqualified workers, the point is they have to hire ANY available qualified legal US worker BEFORE they can try to bring someone into the country with an H1B.
You won't get that job. The H1 Employer will write the ad so that only his potential hire can pass it. I need a person who speaks creole and yiddish, with a degree in fine arts and electrical engineering. Must be able to program in Fortran and java, in cantonese.
When the Employer goes back to INS to prove the job they wrote the definition for cannot be filled except by the H1, the circle is closed.
Oh, and you OWN the H1...you'll never get that with a normal employee.
Attorney who used to write those ads.....
The average wage of a programmer is only $45,000 a year and yet these guys expect to make $60k a year!!
I can see where they get their numbers from:
http://money.usnews.com/careers/best-jobs/computer-programmer/salary
Now where did you get yours?
If you work with H1B's, you need to clearly define what your qualifications are for the job. 5 years of experience in X, Have done Y in the past, etc. They need to be listed in the job description. Anything outside the description can't be included in the determination if somebody is qualified or not as a justification for bringing in the H1B. If she met all the bullet-points that were on the job description, she would have been a candidate, and therefore would have been able to apply, and therefore ALL H1Bs are ineligible by law. It's pretty cut and dry.