An Indianapolis TV station, ABC-affiliate RTV6, recently released a published news report and video about a case the attorney-authors are working on, Panwar et. al. v. Access Therapies et. al.

This federal class action lawsuit was filed on behalf of a proposed class of H-1B workers against Access Therapies, Inc., RN Staff Inc. d/b/a Rehability Care, and an associated representative of the companies. The lawsuit alleges that Access Therapies and related entities systematically “bench” and underpay H-1B workers as part of a scheme that violates civil laws including forced labor laws, wage laws, contract law, and the Racketeer Influenced and Corrupt Organizations Act (RICO).

The RTV6 news report discusses the case, and interviews various attorneys about the case and Access Therapies.

The attorney-authors Michael Brown and Vonda Vandaveer are among the attorneys representing the H-1B worker who filed the lawsuit, along with attorney Daniel Kotchen and Kotchen & Low LLP.

Please contact attorney Michael Brown at (920) 831-0300 if you have any information or questions about the case.

You can also link here to review more information about the Access Therapies case and the latest Complaint, which details the case allegations about H-1B workers being underpaid and mistreated.

Exploitation of J-visa workers has popped up in the news again, with the Department of Labor reaching a settlement with three companies to pay $213,000 in back wages to foreign students who were hired for summer work in Pennsylvania at a Hershey’s Chocolate packing plant.

The settlement resolves claims against the three companies for their respective roles in recruiting and employing 1,028 foreign students who were participating in the State Department’s J-1 Summer Work Travel program, which is designed to promote educational and cultural exchange.

The three companies are: The Council for Educational Travel-USA (CETUSA), which acted as the students’ sponsor in the program, Excel, Inc., which operated the Hershey’s packing plant where the students worked, and The SHS Group, LP, which hired and placed the students at the Excel work site. Hershey was not a named defendant in the claims.

The companies’ violations first made headlines in 2011 when the J-1 student workers held a strike at the packing plant, alleging they were working in harsh conditions, such as heavy lifting and having pay dedutions that left them with less than the minimum wage for living.

The department’s Wage and Hour Division investigation found violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) as a result of excessive housing costs charged to the foreign students employed at the Palmyra facility, which reduced their hourly wages below the amount they were required to be paid under the FLSA.

Excel also was fined $143,000 for violations of safety and health violations in connection with the foreign employees’ working conditions, including excessive noise levels, and DOL assessed an additional civil money penalty against SHS for repeat violations of the Federal Labor Standards Act (FLSA).

Earlier this year, DOS debarred CETUSA from participating in the J program for two years for the violations and revised J-1 program rules to add additional protections for student guestworkers.

The Department of Labor has issued a detailed press release on the case here: http://www.dol.gov/opa/media/press/osha/OSHA20122169.htm#.UKPmReOe9mg

The case was pursued by the National Guestworker Alliance. http://www.guestworkeralliance.org/tag/j-1-visa/

J-1 Workers Susceptible to Fraud and Exploitation

While the media abounds with stories about H-1B fraud, the employer violations occurring within the J-1 program are not as well publicized and perhaps not as well reported. J-1 workers are just as susceptible as H-1B employees to becoming victims of fraud due to their dependence on their sponsor to work and their lack of knowledge about their legal rights.

If you are a J-1 worker and are being underpaid, you may be eligible to pursue claims against your employer. You should seek competent legal advice promptly to avoid losing your legal rights and missing any filing deadlines.

For more information about legal services the law firms Peterson Berk & Cross and VK Vandaveer PLLC offer to foreign workers, including J-1 employees, see our page here or contact us at mbrown@pbclaw.com or vonda@vkvlaw.com.

The November 2012 issue of Wisconsin Lawyer magazine has an article titled “Top 12 2011-12 Wisconsin Supreme Court Decisions,” and it lists as number 5 the case of Kroner v. Oneida Seven Generations Corporation.

The plaintiff John Kroner is represented by Michael Brown, an attorney at Peterson, Berk & Cross attorney and an author of this blog.

Mr. Kroner was formerly the CEO of the defendant Oneida Seven Generations Corporation (OSGC), a corporation affiliated with the Oneida Tribe of Indians of Wisconsin.  Mr. Kroner alleges he had years of good performance with OSGC and was discharged without notice or a good reason.  He further alleges he had a contract-law right, under Wisconsin law, that his employment with OSGC was such he could only have been discharged for “cause.”  (In contrast, many employers have “at-will” employment, where an employer does not need “cause” or a fair reason to terminate an employee’s employment).

Mr. Kroner asserted, to the Brown County Circuit Court, that he should have a trial in that Court to determine whether OSGC’s termination of his employment violated Wisconsin law.  OSGC attempted twice to have the Brown County Court drop the case, for reasons relating to OSGC’s tribal affiliation.  First, OSGC filed a motion to dismiss the case, based in large part on an argument that sovereign immunity applied and that the Oneida tribal forum had exclusive jurisdiction over the parties’ dispute.  That motion was denied by the Brown County Court.

OSGC also filed a motion seeking to transfer the case to the Oneida tribal forum, pursuant to a Wisconsin law allowing tribal transfer in certain situations.  The Brown County Court granted the motion, and the case was to be transferred to the tribal forum.  However, Mr. Kroner appealed.  The Wisconsin Court of Appeals agreed with the first Court’s decision, and upheld the transfer.  Mr. Kroner appealed again to the Wisconsin Supreme Court.

The Wisconsin Supreme Court found in Mr. Kroner’s favor (per its decision here), holding that tribal transfer was not permissible under the circumstances.  Mr. Kroner had argued that the fair decision was that his case be allowed to continue in the Wisconsin courts, based on issues of time and resources, procedure, the availability of fundamental Wisconsin-law rights, and other factors.  Some of the details are discussed at the Wisconsin Lawyer article above, which provides a helpful analysis of the case.

The Wisconsin Supreme Court agreed with Mr. Kroner that OSGC had not established legal grounds to transfer the case, overturned the tribal transfer decision, and remanded the case back to the Brown County Court to proceed there.

The case is set for a jury trial in the Brown County Circuit Court starting April 22, 2013.

This federal class action lawsuit was filed on behalf of a proposed class of H-1B workers against Access Therapies, Inc., RN Staff Inc. d/b/a Rehability Care, and an associated representative of the companies. The lawsuit alleges that Access Therapies and related entities systematically “bench” and underpay H-1B workers (and force workers to pay visa fees) as part of a scheme that violates civil laws including wage laws, contract law, and the Racketeer Influenced and Corrupt Organizations Act (RICO).

The attorney-authors Michael Brown and Vonda Vandaveer are among the attorneys representing the H-1B worker who filed the lawsuit, along with attorney Daniel Kotchen and Kotchen & Low LLP.

Please contact attorney Michael Brown at (920) 831-0300 if you have any information or questions about the case.

Scroll below if you’d like to review the latest Complaint, which details the case allegations about H-1B workers being underpaid and mistreated:

The American Association for Justice describes the new website as follows:

Take Justice Back will:• EDUCATE people on how their rights are being threatened; • MOTIVATE Americans by sharing real stories of people denied justice; • ENGAGE consumers through social media such as blogs, Facebook, and Twitter; and • EMPOWER activism by creating a portal where people can share information, send letters to members of Congress, sign petitions, and link through to their own blogs

In June 2010, a U.S. citizen with more than 12 years of experience in the agricultural industry said in a complaint that he had applied for a job as a cotton picker operator at Estopy Farms, of McAllen, Texas. He was rejected, but during the same period, Estopy Farms hired a number of seasonal foreign workers under the H-2A program. The U.S. citizen claims he was rejected because of his citizenship.

Texas Rio Grande Legal Aid Office filed a lawsuit with the Chief Administrative Hearing Officer (OCAHO) within the Justice Department’s Executive Office for Immigration Review on behalf of this applicant along, with another U.S. citizen. The lawsuit alleges violations of H-2A program rules, which require employers to certify that they have actively tried to recruit U.S. workers and that the hiring of foreign workers is not adversely affecting the working conditions of similarly employed U.S. citizen workers.

The Department of Justice also has filed a motion to intervene in the lawsuit in conjunction with its role of enforcing the INA’s anti-discrimination provisions. The DOJ pursues employers accused of discriminatory hiring practices.

Employer discrimination is wrong in the U.S., whether it’s discrimination against foreign workers or against U.S. citizen workers. For more information about the legal services we offer workers who have experienced discrimination, please email the attorneys at mbrown@pbclaw.com or vonda@vkvlaw.com.

united states currency eye- IMG_7364_web (Photo credit: kevindean)

The attorney-authors have represented many H-1B workers, some of whom have done project work for some of the biggest companies in the U.S.  Some things that seem remarkable to us: (1) the epidemic of H-1B workers across the country who are underpaid or not paid during benched time and are not paid, underpaid or have delayed payment, even during project time; (2) the fact that this epidemic of H-1B underpayment is well-known in large social circles, including H-1B sponsor employers themselves, immigration attorneys, etc.; (3) the fact that many large U.S.-based corporations themselves sponsor H-1B workers (whom they usually pay their full required wages), BUT the same large employers often employ, as independent consultants for project work, H-1B consultants whose H-1B visas are sponsored by other, smaller, body-shop employers who systematically underpay the workers and violate H-1B laws per their business models and systemic practices.

Our question: don’t these large end-clients (at least some of them) know that their project consultants are sponsored by H-1B-bodyshops who underpay and mistreat the workers?

It seems implausible that so many large U.S. corporations use bodyshop H-1B consultants, but are not aware that these same workers are often victims of exploitation by their sponsor employers.  Are big companies turning a blind eye, and knowingly accepting the benefits of H-1B bodyshops’ dirty work?  We’d be curious for our readers’ thoughts on this issue.

In the workplace, curiosity does NOT, as they say, “kill the cat.”  To the contrary, if you are in a workplace dispute, curiosity is a GOOD thing.  Curiosity will cause you– before you take action– to take time to pause, gather more information, learn what is truly going on, and hopefully learn from credible sources what options you truly have.  These are good things.  Curiosity is a good instinct to have when you are in a risky situation, like a workplace dispute, and you don’t know the full ramifications of what’s going on.

Unfortunately, when I encounter workers who had had workplace disputes, and who are seeking my legal advice as a result of those disputes, all too often those workers had not had enough curiosity back while they were interacting with the employer.  That is, many workers who get into workplace disputes make assumptions and act on those assumptions.  Worse, those assumptions usually turn out to be wrong, and in fact harmful– with workers commonly losing their jobs, their unemployment benefits, their legal claims, etc.– in part or in whole due to those assumptions.

For example, consider this common scenario.  A worker has a severe medical crisis and misses work on medical leave.  After returning to work, the employer gives the worker a disciplinary warning the worker finds suspicious.  So the worker decides to tell the employer, “This warning is false; you’re just giving it to me because of discrimination about my medical condition.”

A worker who says such a thing, i.e. who tells the employer “discrimination” has occurred, is making some pretty weighty assumptions.  Those assumptions include: (1) the assumption that discrimination, a legal label for a situation, DID occur (notwithstanding that someone else, i.e. a judge or jury, is the decider whether discrimination occurs, and that decider may or may not agree with the worker); (2) the assumption that telling the employer that “discrimination” occurred will scare the employer or help the worker (notwithstanding the fact that some employers are at high risk to fire workers and retaliate against them for complaining of “discrimination”); (3) the assumption that the worker would be in a position to enforce whatever discrimination-law rights (if any) the worker may have, i.e. that the worker would have the time and/or resources and/or an affordable or contingency attorney available to the extent necessary to successfully pursue and complete a discrimination lawsuit.

These are very risky assumptions to make and act on. Unless a competent employment attorney has told the worker– before the worker takes action– that the assumptions above are true, the worker is taking big risks in acting on those assumptions in his communications with the employer.

If you find yourself in a workplace dispute, before you take further action, think about what assumptions you are making (e.g. that “this must be discrimination!”) versus being mindful of what you don’t know for certain (e.g. “Well, my situation seems unfair but wouldn’t hurt to run it by an attorney who practices discrimination law for a living”).  Some people are reluctant to consult with an attorney because of the cost or perceived cost, which is understandable.  The cost should be weighed against the cost of whatever it is that you stand to lose, whether it’s a high cost like losing the job, or a lesser cost like having a discipline on your work record.  The higher the cost of whatever you could lose, the more sense it makes to pay for competent legal advice, and the more sense it makes to beware of your assumptions.

An H-1B IT body shop in Georgia was ordered to pay $741,288 in back wages to 73 employees who were unlawfully benched or required to pay visa and application processing fees.

The Department of Labor ordered Semafor Technologies LLC in Norcross to pay the back wages following an investigation into allegations of its unlawful practices. In addition to imposing back wage payments, DOL also has required the company to implement new payroll and time-keeping procedures to ensure future compliance with the H-1B program.

The company specializes in software development, on-site/off-site application outsourcing, infrastructure, consulting and product development services.

The DOL press release on the order is available here:

http://www.dol.gov/whd/media/press/whdpressVB2print.asp?pressdoc=Southeast/20120612.xml

If you have been unpaid or benched by your employer, you may have claims. You can learn more about your rights by talking to a competent attorney.

For more information about the legal services we offer H-1B workers, see our page here.

If you are an H-1B worker who has been underpaid or otherwise mistreated by an H-1B employer, you may be able bring your claims not only on your own behalf, but also on behalf of a class of similarly situated individuals.  The attorney-authors of this blog, along with our attorney colleagues at the excellent class-action law firm Kotchen & Low, have litigated proposed class-action cases (as well as single-worker actions), in a variety of legal forums.  When H-1B workers’ situations do in fact support class-action treatment of their claims, their lawsuit can be very strong.

This article describes various factors that support class treatment of H-1B workers’ claims, the nature of such class claims and forums they can be brought in.  If you are an H-1B worker who is curious whether your situation could support a class-action case, this article will give some general educational information and food for thought.

Please note that only a competent attorney can adequately evaluate whether a valid class action would exist for your situation or should be pursued.  So if you want legal advice about whether your own situation can be pursued as a class action, please consult with a competent attorney (if you’d like, you can have a free initial consultation with us, or with another attorney of your choice).

This article will first discuss some factors that could potentially support an H-1B class action.

Factors That Potentially Support an H-1B Class Action

The following factors, generally speaking, make a class action more supportable.  While these factors do not give a bright-line standard for what situation makes for a good class action, we can say that the more of these factors that are present, the more likely you will have a viable class action case.

• Factor #1: The H-1B employer’s actions or schemes are systemic, and have harmed you and other workers (e.g. underpaid your wages) in the same or similar ways.

If an H-1B employer is  underpaying or mistreating many H-1B workers in the same, systemic way– for example, not paying required wages to H-1B workers (you and others) for benched time, or underpaying you all for project work, and/or requiring that you all pay certain visa-related fees at thousands of dollars each (despite law requiring the employer to pay) — then any such systemic type of mistreatment,where many H-1B workers are subject to the same scheme or schemes of misconduct, is more likely to support a class action.

• Factor #2: The H-1B employer is medium- to large -sized, with large numbers of H-1B workers.

The larger the size of the H-1B employer, and the scope of its systemic mistreatment of workers, the greater the potential for maintaining a class action.  If you work for a smaller H-1B employer that mistreats you, it is very possible you have individual (non-class) legal claims, but the smaller the employer the less likely class-action claims could be supported.

• Factor #3: The H-1B employer’s pattern of misconduct involves repeated violations of the same law or laws, such as repeated breaches of employee contracts, repeated violations of wage laws, or repeatedly falsifying immigration-related documentation.

For example, if a given H-1B employer over the course of years has submitted numerous Labor Condition Applications (LCAs) to the U.S. government for H-1B worker applicants, if that employer has thus repeatedly attested (as LCAs require)  that the employer will pay H-1B workers their prevailing wages during nonproductive/benched time, and the employer has thereafter failed to pay those workers wages during benched time, then this same scenario, year after year, creates repeated and systemic violations of the same series of laws.  These types of systemic violations of the same laws give rise to potential class-action claims.

• Factor #4: The H-1B employer’s pattern of conduct involves knowing or willful violations of laws.

If an H-1B employer’s systemic wrongs are done with knowledge that they are violating the law, then you may have strong potential class-action claims that involve willful misconduct, such as civil RICO or forced-labor statute claims.

• Factor #5: There is at least one H-1B worker willing to participate as a named plaintiff (party filing a legal complaint) in a class action.

Last but not least, at least one H-1B worker in the potential class — e.g. at least one in a group of unhappy benched/unpaid H-1B workers– must be willing to file a legal complaint.  As long as one such worker (named plaintiff) files a proposed class-action complaint, then other similarly mistreated workers could potentially benefit from the class action lawsuit even if they are not named plaintiffs.  Often, wage-related employee class actions are brought by former employees, as they can pursue unpaid wages a former employer owes without being concerned about suing their current employer. We have, however, also represented named plaintiffs who have sued their current employer. Whether you are a former or current employee, you may be able to pursue an employer who violated the law.

Potential Legal Forums for an H-1B Class Action

Many H-1B workers are familiar with a type of legal complaint for unpaid H-1B wages, the WH-4 complaint, that can be filed at the U.S. Department of Labor (DOL).  A DOL complaint can lead to effective relief for some H-1B workers.  Of note, a worker cannot file a class-action complaint (nor many of the class-action claims described in this article) at DOL.

Class-action lawsuits must be filed in a State or Federal court, usually the latter, as Federal-Court claims are often the primary claims at issue in H-1B class actions.  Because court litigation is required for such class actions, it is wise to have a litigation attorney (whether via contacting this blog’s authors or otherwise) evaluate the potential class action claims, even if you are not sure you want to end up pursuing them.  Attorneys familiar with H-1B class-action court litigation can better advise you whether that type of litigation would be worthwhile than can an attorney (however generally competent) who does not do that type of work.

Potential Legal Claims in an H-1B Class Action

The attorney-authors have exhaustively researched and pursued class-action legal claims for wrongful H-1B employment situations, including but not limited to: (1) civil RICO claims; (2) federal statutory claims relating to forced labor, trafficking, and/or misuse of immigration-related documentation by the employer; (3) breach of contract claims; (4) unpaid wage claims per State and/or Federal wage statutes; and (5) other fraud- and contract- like claims under applicable laws.

These claims, if available and successful for a given H-1B worker-litigant, can be very strong, and can provide remedies that go above and beyond the value of unpaid wages that may be at issue.  For example, depending on the circumstances, civil RICO could potentially provide an H-1B worker with damages for triple the value of his unpaid wages.  This type of remedy is not available for a DOL complaint.

Conclusion

We hope this article provides some useful background information about potential class-action claims for underpaid or mistreated H-1B workers.