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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.
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