Both Department of Labor and Private Suits Attack H-1B Practices

By David North on August 22, 2018

Here's an update on a bevy of anti-discrimination suits filed in federal courts, and a newly revealed Department of Labor investigation, all targeting the H-1B program.

It turns out — mostly thanks to a single law firm — that there are at least eight such class-action suits, all charging discrimination for South Asian workers, and against U.S. citizens and people from other countries. Bringing seven of the eight cases of this type known to us is the small D.C. law firm of Kotchen & Low LLP.

In the most recent of the Kotchen & Low cases, the plaintiff is an American citizen named Reese Voll, who was formerly employed by HCL Technologies, another of the Indian outsourcing giants. It was filed on August 15 in the U.S. District Court in the Northern District of California, and bears the PACER file number 5:15-cv-04943-VKD.

HCL has the additional distinction of being the firm that supplied the alien workers who displaced long-time citizen employees at the University of California, San Francisco; these U.S. workers had to train their replacements, a fact that drew a lot of negative press.

So here's the current tally of outsourcers sued for H-1B related discrimination reported above and previously by us:

  • Tata
  • Cognizant
  • Infosys (a case filed by another law firm)
  • HCL

And four other Kotchen & Low cases along the same lines:

  • Tech Mahindra - Eastern District of North Dakota
  • Virtusa - District of New Jersey
  • Wipro - Southern District of Texas
  • Infosys - Eastern District of Wisconsin

Meanwhile, there is a new story on the wires that yet another big outsourcing firm, Cisco, has been found, by Department of Labor investigators, to have "secured visas for foreign workers instead of hiring U.S. citizens for certain jobs and paid the visa holders at a lower rate than their American counterparts."

What is interesting here is that the Department of Labor is not going after Cisco as an employer, but as a government contractor, and, as we have noted before, the government has a lot more power as a customer than it does as a regulator. (I learned this lesson as a young DoL employee in the Kennedy administration; at that point Congress would not pass an equal employment opportunity law, but the government, as a customer, could impose EEO measures on its contractors, and the administration did just that.)

The DoL action is, in terms of the law, quite different from the private suits described above, but it aims in the same general direction — reining in the various abuses the government currently tolerates in the H-1B program.

All of this is in addition to some steps taken by DHS to ask more questions of H-1B employers, and to examine other ways of more strictly regulating the program.

Maybe some of the users of the H-1B program, looking at the mounting bills from their lawyers and the bad press they are getting, will start hiring more citizen workers. And maybe one or more of these eight different actions will cost the outsourcers enough money to change their practices. Maybe.