Category Archives: Uncategorized

Class Certification Motion by H-1B Workers in Case Against Access Therapies, RN Staff et al

A class certification motion and brief were filed (link to the brief is here), by H-1B workers represented by the attorney-authors, with regard to the case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at 920-757-2488 if you have any information or questions about the case.

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Reply Brief Filed Regarding Witness Tampering Motion Against Access Therapies et al

A reply brief was filed (link to the reply brief is here), by H-1B workers represented by the attorney-authors, with regard to the Motion for Witness Tampering and Discovery Misconduct Sanctions in the workers’ case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at 920-757-2488 if you have any information or questions about the case.

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May 28, 2014 · 8:49 am

Filing of Plaintiffs’ Motion for Witness Tampering and Discovery Misconduct Sanctions in H-1B Workers’ Case Against Access Therapies, RN Staff et al

Recently, H-1B workers represented by the attorney-authors filed a Motion for Witness Tampering and Discovery Misconduct Sanctions in the workers’ case against Access Therapies, Inc., and RN Staff Inc. d/b/a Rehability Care, and associated company representatives.

Please contact attorney Michael Brown at 920-757-2488 if you have any information or questions about the case.

Click here if you’d like to review the brief accompanying the motion.

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Is Your Employment at Will? Don’t Assume You Have No Legal Rights

Employment at will is the general concept that an employer can fire an employee for most reasons.  You have probably heard about the general rule of employment at will, and how it allows employers to conduct many types of job terminations and unfair actions.

But if you have at-will employment, you should not assume you have no legal rights.  As I have described in this article, there are exceptions to employment at will where broad categories of at-will workers do have potentially strong legal claims for diverse employment situations.  Also, upon closer examination, those categories of legal rights (described on a high level in that article) consist of a substantial number of legal claims.  For example, legal rights generally labeled as “discrimination” and “whistleblower retaliation” rights encompass thousands of distinct legal claims, the applicability of which depend on the particular situations, Federal and State laws involved, etc.

Given the vast possible legal claims out there, the employment at will concept should not cause you to make definitive assumptions or decisions.  With that said, if the concept has given you a sense of skepticism that makes you want to learn more before taking legal action, that’s a good thing.

It is an important decision whether you take legal action or not.  So important that, in my view, it warrants you have an attorney evaluate your matter before you act on your assumptions.  As mentioned, some workers don’t explore valid legal rights because they wrongly assume employment at will bars those rights.  On the flip side, some workers assume they do have strong legal rights when they don’t, and rush ahead and file legal claims (e.g. discrimination claims they file without an attorney’s assistance).

My bottom-line suggestion is this: if you are not an employment law attorney, then do not diagnose your own legal claims or lack thereof.  If you consult with a competent employment attorney, and he or she gives you an evaluation whether you have a viable claim, then that is a sound basis upon which to base your actions or inaction.

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Hit a Grand Slam Sale, And Thrown a Lowball Commission? Don’t Get Beaned.

ImageAs an attorney who practices in contractor rights and worker rights issues, I encounter many different underpayment scenarios.  While all income theft is troubling, it’s particularly tough to encounter those folks who are made victims of their own success.  Namely, it’s hard to see a commissioned worker or contractor make a huge sale — earning them a fixed (and large) commission under a contract or commission plan– and at that point, the benefiting company tries to change the deal.  It’s as if you can see the wheels turning in the company rep’s mind right after the sale: “I didn’t know you’d make that kind of sale, and a 10% commission could be that much.  I think I’ll throw the company’s weight around, and get you to accept something less so I get more.”

If you find yourself in this situation, you’ll certainly feel great pressure.  The pressure of wanting to keep what you rightfully earned, versus the pressure of not wanting to lose your entire job or contract if the company you’re dealing with is willing to go to serious lengths in throwing its weight around.  This article proposes factors to consider if you find yourself in this situation.

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Should You Get a Local Attorney?

Local Article PhotoIf you’re looking for an attorney to help with a legal dispute, you may have asked yourself: “Should I get an attorney located near me?” Or you may have assumed that you should get a local attorney, without even considering it an option to retain an attorney outside your city or state. While it’s good to ask questions, and good to review whether or not a local attorney is the best option, you should not assume a local attorney is the only option.

In actuality, lawyers (including employee rights attorneys) can and do represent clients in different states, in many circumstances and cases.  Lawyers in the U.S. are generally licensed to handle Federal-law matters all across the U.S. Many employment-law claims are Federal claims, including many important claims relating to job terminations and pay.

I personally handle Federal- law matters in numerous states. I commonly represent clients located in states other than my mine (Wisconsin) and even in other countries.  Those clients retained me because I have experience with legal issues at hand.  For most clients and cases, the quality of legal work– wherever it is performed– is the most important issue.

Of note, nearly all legal work is remote: the vast majority of legal work is done via a computer, phone, and mailed or electronically- transmitted documents.  Even clients who live very close to my office will only occasionally (at most) meet in person with me, with some clients– near and far– choosing not to meet with me at all.  I definitely understand people who are more comfortable meeting in person, and I have meetings on request whenever feasible. But that is because a given client and I decide to meet in person, not because we must do so.

With that said, there are some types of matters where an attorney’s location and/or licensure can be very important to a matter.  For example, some issues are highly focused within a particular state’s law or legal proceedings, in which case it may be important to work with an attorney licensed and/or physically located in that state.  Some of my Federal cases involve secondary state- law issues and I work along with co-counsel attorneys located or licensed in the pertinent states.  However, many cases do not require or need this type of work-sharing. Also, some state courts and state forums readily accept out-of-state attorneys to work within those forums.

Any employee rights attorney who you contact, wherever he or she is located, should be able to tell you whether he or she can assist with your matter or not.  The key is to contact the attorney you most want to contact (wherever he or she is located), and to ask all the questions you want answered, including whether local counsel is necessary for your particular issues.  If you feel a particular attorney can help you with your specific issues, don’t assume location is a barrier, at least for your first call.

In my view, there are three better questions than “Should I get a local attorney?”  Those are:

(1) Does a particular lawyer you’ve learned about appear to be able to help you with your concerns?

(2) If you’ve called that lawyer, has the lawyer explained to your satisfaction whether his or her location could present any limitations to representing you?

(3) If the lawyer explained how and why he or she could help you, do the potential benefits of representation outweigh any potential limitations?

Asking these questions should give you the information you need to choose an attorney and weigh the pros and cons (if any) of a non-local attorney representing you.

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Reporter Looking for H-1B Workers to Comment About Bodyshops for Major News Story

If any of our H-1B worker readers are interested in speaking with the media about unfair treatment by an H-1B bodyshop, please submit a comment to attorney-blog author Michael Brown below or email me at mbrown@dvglawpartner.com.  With your permission, I could put you in contact with a reporter who is planning a major news story about H-1B bodyshops mistreating workers.

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Proposed Class Action Complaint Filed Against Infosys for Failure to Hire, National Origin Discrimination

The attorney-author and co-counsel have filed a federal class action lawsuit against Infosys Technologies Limited Inc. (“Infosys”), filed on behalf of a proposed class of job applicants denied employment by Infosys. The lawsuit alleges Infosys’s hiring policies and conduct discriminate against workers of American or non-South Asian national origin, in violation of Title VII law.

The attorney-author of this website article, Michael Brown, is among the attorneys representing the worker who filed the lawsuit, along with attorneys Daniel Kotchen and Robert Klinck of Kotchen & Low LLP and Vonda K. Vandaveer of V.K. Vandaveer, PLLC.

Please contact attorney Michael Brown at 920-757-2488 if you have any information or questions about the case.

Scroll below to review the Complaint, which details the case’s allegations that job applicants are being denied employment by Infosys in violation of discrimination law:

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J-1 Workers Have Rights Too; Students Awarded Back Pay After Filing Claims of Abusive Conditions

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 DVG Law Partner and VK Vandaveer PLLC offer to foreign workers, including J-1 employees, see our page here or contact us at mbrown@dvglawpartner.com or vonda@vkvlaw.com.

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Are You an H-1B Worker Promised a Percentage-Based Wage Higher Than the Prevailing Wage? Get Documentation

A percent sign.

Has your H-1B employer promised you a wage that is based on a percentage of project work? If so, read on, as this article discusses some common issues and important considerations for H-1B workers offered percentage-based pay.  This includes the importance of having documentation of what the employer promised.

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