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Chinese Immig. Daily
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By Bruce Buchanan, Sebelist Buchanan Law
As I previously discussed and has been widely reported, two terminated Disney World employees have sued Disney World and two consulting firms, HCL, Inc. and Cognizant Technology Solutions Corp., alleging violations of Racketeer Influenced and Corrupt Organizations Act (RICO).
The employees have alleged the consulting companies lied to the U.S. Department of Labor in their Labor Condition Application (LCA) when it stated the hiring of H-1B nonimmigrant employees would not adversely affect the working terms and conditions of other employees of the consulting firms. The employees have also alleged Disney World conspired with consulting firms leading to the RICO lawsuit.
Cognizant has argued it did not even make those assertions in the LCA because the workers in question were exempt, and even if the workers were not exempt, Cognizant only was certifying no Cognizant employee would be affected. Cognizant stated it had no duty to make any certification for Disney Workers.
Furthermore, Disney World and the defendants have stated Cognizant failed to allege the existence of an enterprise, necessary for a RICO Act claim; rather, Disney and Cognizant had a consulting relationship. In a later filing, HCL and Disney World made similar assertions as to why the lawsuit should be dismissed.
More recently, the former Disney World employees responded that RICO had been sufficiently pled and Cognizant “could not help Disney World pursue the profit by hiring cheaper foreign labor without Cognizant filing the H-1B petitions.”
In Disney World’s latest filing in the class action lawsuit, it stated that the plaintiffs’ lawsuits were “in search of a legal claim.” Disney World further stated the lawsuits do not have “any viable theory on which to proceed.”
I will get you updated on further filings and rulings on the case.
By Bruce Buchanan, Sebelist Buchanan Law PLLC
An Administrative Law Judge (ALJ) of the Department of Labor (DOL) has ordered Medical Dynamic Systems Inc to pay back pay to a H-1B worker of more than $59,000 in fees and back wages for violating the H-1B visa laws. The ALJ said the health care staffing company must pay Philippine national Vicente D. DeDios the $3,600 he unlawfully paid in connection with his H-1B visa processing and an additional $55,587 in back wages.
DeDios alleged Medical Dynamic Systems agreed to sponsor him for a nurse manager position at $37.06 per hour but only gave him 24 hours of work after he arrived in the U.S. He also alleged it unlawfully collected H-1B filing fees (Employers must pay the H-1B filing fees).
The company argued the complaint to DOL was untimely. However, the ALJ rejected this argument and found DeDios filed his complaint “well within” the labor condition application (LCA) employment authorization period. Additionally, the ALJ found Medical Dynamic Systems failed to raise the timeliness argument at the agency hearing, and the record contained no definitive evidence of when the complaint was filed.
Medical Dynamic also argued that it was only liable for five days that DeDios was “available to work,” because on the other days he failed to respond to phone calls and emails and did not show up for interviews. ALJ rejected this argument and found the company did not meet its burden in showing that DeDios was in non-productive status because of conditions unrelated to employment.
By Bruce E. Buchanan @ Sebelist Buchanan Law
A U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) ordered Florida-based Government Training LLC, which provides training and publishing for government agencies, to pay back wages of about $48,000 to a nonimmigrant H-1B worker, Duneet Sharma, an Indian National, whom it underpaid. See Administrator, Wage and Hour Division v. Government Training, LLC, 2015-LCA-5 (DOL OALJ 2016).
Initially, the DOL issued findings that Government Training had violated the Immigration and Nationality Act (INA) by not paying Sharma either the actual wage or the prevailing wage specified in two LCAs. Thus, the DOL concluded that Sharma was owed back wages. The employer appealed the findings, sending the case to an ALJ. In October, the DOL filed for a summary decision, saying that the facts backing its initial findings were not in dispute.
Under the INA, employers who want to hire nonimmigrants to work in specialty occupations in the U.S. under the H-1B program must first obtain certification from the DOL by filing a labor condition application, or LCA, which sets the worker’s wage levels and working conditions. After getting an LCA as well as approval from the U.S. Department of Homeland Security, the H-1B nonimmigrant is issued a visa and may begin work.
Before the ALJ, Government Training sought the case to be dismissed and raised these issues: whether the employer was not liable for back wages due to lack of work, and whether Sharma was provided with a car, a cellphone and health insurance that should have been considered part of his wages.
The ALJ found that Government Training routinely underpaid Sharma, who was employed as a computer programmer from 2010 until 2013, from the amounts it had listed in its LCAs. The ALJ said the LCAs in Sharma’s case promised to pay him $65,000 per year for the position of software engineer, and set the prevailing wage at close to $56,000. The ALJ noted that Government Training admitted that it did not pay Sharma the required wages under the LCAs, and rejected the company’s arguments that it should be excused from not paying those required wages.
The ALJ also pointed out that although the health insurance, car and phone that Sharma received could be considered as benefits that are provided as compensation, Government Training didn’t submit any documentation to show how much those items cost or that they were ever reported on Sharma’s payroll or to the IRS as required; thus, the ALJ declined to find these benefits offset some of the back pay.