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Disney Defends Lawsuit Over Immigrants Replacing American Workers

By Bill at October 19, 2016 00:53
Filed Under: Immigration News

A former Disney World worker aims to lead a class action claiming racketeering.

The allegation that hundreds of American tech workers at Walt Disney World trained immigrants who would take their jobs makes for an unflattering headline. But according to Disney and the IT consulting firm it works with, there's no conspiracy and they've properly complied with the H-1B visa process.

Leo Perrero, who formerly worked at Disney, is leading a putative class action that alleges that his former employer and HCL colluded with each other when telling the Department of Labor that the hiring of foreigners on visas wouldn't adversely affect the working conditions of U.S. workers. The complaint filed in Florida federal court claims that workers were indeed displaced and that Perrero and others were told to train their replacements or lose severance.

On Friday, both Disney and HCL filed motions to dismiss the complaint.

According to Disney, the lawsuit is defective thanks to the absence of any allegation it was conspiring with HCL to break the law. Yes, the companies had a contract with each other, but Disney argues that's hardly the same thing as saying that Disney knew HCL would be making false statements to the federal government.

"Even accepting as true the Complaint's inaccurate allegations regarding the contract between HCL and WDPR, Plaintiff nowhere alleges (and could not allege) that it is inherently unlawful to agree to provide IT services using a workforce that includes H-1B visaholders," states Disney's court papers.

And then there's the issue of whether HCL really did make false statements. Perhaps immigration law allows for what happened?

In its own court papers, HCL interprets immigration law as meaning that it had to attest that foreigners on H-1B visas would not adversely affect the working conditions of other HCL employees, not Disney employees. HCL also says that "working conditions" don't mean job displacement, that it really means such matters as hours, shifts, vacation periods and benefits.

There's another form that some employers have to fill out that specifically attests to U.S. workers not being displaced, but HCL says it only applies to non-exempt employees, and as such, it wasn't under any requirement to make such a certification and so it didn't.

"As plaintiff concedes, HCL hired only exempt employees who earned at least $60,000 per year or held a master's or higher degree in a relevant field," states HCL. "That concession is by itself a sufficient basis to reject Plaintiff's allegations regarding a supposed misstatement concerning displacement."

The H-1B visa system has become controversial of late thanks in part to what was happening at Walt Disney World. Bernie Sanders wants to reform the system to prevent employers from abusing the system while Donald Trump has made it a campaign platform to increase the prevailing wage for H-1Bs so as to discourage companies from outsourcing to lower wage foreign workers. Hillary Clinton has remained mostly silent, though she's been quoted in a 2007 speech as supporting an increase in the H-1B cap.

Here's Perrero's complaint, Disney's motion and HCL's motion.

Judge Says Disney Didn’t Violate Visa Laws in Layoffs

By Bill at October 19, 2016 00:50
Filed Under: Immigration News

New York Times-Oct 13, 2016:  A federal judge in Florida dealt a blow on Thursday to legal claims by American technology workers who were laid off by the Walt Disney Company and forced to train foreign replacements, dismissing lawsuits by two workers who said Disney had conspired with outsourcing companies to violate visa laws.

In a terse decision, Judge Gregory A. Presnell of the United States District Court in Orlando rejected the former workers’ arguments that Disney and the two contractors had colluded to make false statements when they applied for temporary visas, known as H-1B, for the foreign replacements.

The judge found that “none of the allegedly false statements put at issue in the complaint are adequate” to sustain the former workers’ case. The outsourcing companies that were sued with Disney were Cognizant Technology Solutions and HCL America.

The plaintiffs, Leo Perrero and Dena Moore, were laid off early in 2015 from jobs with Disney in Orlando. In their final weeks on the job, they were required to show foreigners on H-1B visas, brought in by the outsourcing contractors mainly from India, how to do their work.

A spokeswoman for Walt Disney Parks and Resorts, Jacquee Wahler, said, “As we have said all along, this lawsuit was completely baseless, and we are gratified by the decision.”

The former workers’ cases hinged on their argument that the companies had violated clauses of the visa law requiring employers to show that hiring H-1B workers “will not adversely affect the working conditions” of other workers in similar jobs. The law also requires large outsourcing companies that employ many H-1B workers to certify in some circumstances that those workers “will not displace any similarly employed U.S. worker” within six months of applying for the visa.

The outsourcing companies argued that the law would apply to them only if the American workers who were displaced by visa holders they hired had originally been their employees, not Disney’s. Judge Presnell was persuaded by that argument, although he did not entirely reject the idea that the Americans were “adversely affected” by being fired.

The decision was a broad victory for Disney and its contractors, but Judge Presnell left the former workers a small window to amend their lawsuits and to try again.

Mr. Perrero said the decision was a dismaying surprise. “This has become an effective business model in the IT industry where two companies can come together and wipe out American jobs without much fear of legal action,” he said. “I just hope that greed isn’t taking our country in the wrong direction.”

Sara Blackwell, the lawyer who represented the Disney workers, said, “I wanted to see if there was any legal avenue we could use to protect our American citizens, but it seems we can’t.”

Congress considered bills this year to amend provisions in the H-1B visa laws that tech workers say have led to thousands of layoffs, but no action was taken.

The Republican presidential nominee, Donald J. Trump, said early in his campaign that he would seek to change the law to prevent layoffs. But he has not addressed the issue recently.

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