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By: Bruce Buchanan, Sebelist Buchanan Law
U.S. District Judge Gregory A. Presnell agreed with Walk Disney Parks and Resorts U.S. Inc., and consulting firms, Cognizant Technology Solutions and HCL, that the former Disney employees’ allegations that Disney and the consulting firms conspired to replace Disney employees with foreign workers in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) were unsupported by the law. In so finding, the judge said claims that the consultants made false statements in applications to obtain H-1B visas for the foreign workers relied on a misunderstanding of the law, and were fatal to the RICO actions and related claims.
Dena Moore and Leo Perrero sued Disney and Cognizant Disney and HCL, respectively, on January 25, 2016. Moore and Perrero, who are both Americans, claimed Disney conspired with the consultants to replace 200 to 300 U.S. employees with people hired under the H-1B program, which provides temporary visas for nonimmigrant skilled workers.
The civil RICO claims against HCL and Cognizant were based on the allegation that they engaged in racketeering activity by falsely stating on required Labor Department forms that the hiring of the nonimmigrant H-1B employees would not adversely affect the working conditions of similarly situated employees. Perrero and Moore claimed their firings did just that. HCL and Cognizant argued that the requirement applied only to their own employees, not Disney’s. Judge Presnell agreed, noting the working conditions requirement mentions “its U.S. worker employees.”
Furthermore, the judge found the certification that H-1B employees would not displace American workers does not apply to H-1B workers, who earn at least $60,000 a year and have certain education or skill levels.
This has been a highly visible litigation with most experts expecting dismissal of the claims. Given the nature of the claims, it is expected that Moore and Perrero will appeal the dismissals.
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
Two former IT employees, Leo Perrero and Dena Moore, at Walt Disney World in Florida are suing Disney and two outsourcing/consulting companies, HCL Inc. and Cognizant, who allegedly colluded to break the law and replace workers with less costly H-1B visa holders.
The lawsuits allege that Disney, HCL, and Cognizant were not truthful when they filled out documents for H-1B visas, thus violating a section of the RICO law that bars "fraud and misuse of visas, passports, and other documents."The outsourcing/consulting firms stated under oath that working conditions of "similarly situated employees would not be adversely affected," according to the lawsuits.
The suit explained when 200 to 300 Disney workers were given notices of their layoff, they were forced to train their foreign replacements in order to receive severance and their bonuses. Few workers were rehired and the suit alleges that some were blackballed from being rehired at Disney for at least a year. The suit seeks monetary damages although the end goal is to force Disney, the consulting firms and similar organization to change their business models.
According to the lawsuits, “HCL’s contract with Disney was ultimately intended to adversely affect the working conditions of the similarly situated workers at Disney by terminating American workers and forcing them to train the H1B workers their jobs before the termination.
Disney said in a statement that the lawsuits are based on an unsustainable legal theory and are a misrepresentation of the facts. The company says it hired more than 100 people back into other roles and offered Moore another position at comparable pay. Cognizant said in a statement that it complies with all U.S. regulations regarding the visas.