Right to a Written Decision for Dept. of Labor H-1B Wage Complaint

If you’re an H-1B worker and filed a wage complaint with the U.S. Department of Labor (DOL), you have a right to receive a written decision from DOL. DOL’s written decision must state important information, including: (1) if you are owed wages or not; (2) the reasons for the decision; and (3) your rights to appeal the decision, if you feel it is wrong, and the procedure and deadline to appeal it.

The attorney-authors of this blog have had some H-1B workers/ clients tell us that DOL did not issue them a written decision for their wage complaint. In some instances, the DOL investigator only told the H-1B worker the decision over the phone, did not give much detail about the reason behind the decision, and did not describe appeal rights or procedures.

Please know that you do have rights. If DOL is not allowing you to pursue those rights, you may need to tell DOL what they are required to do under the laws and regulations.

Specifically, the H-1B wage complaint regulation at 20 CFR 655.815 describes what a DOL investigator must do after investigating your H-1B wage complaint. In particular, this regulation says DOL must:

1. Mail a written decision (called a “determination) to you, the H-1B employer, and certain other people involved in the case.

2. This written determination must state DOL’s decision about your case and the reason for the decision. If DOL determines the employer has violated the laws or regulations, the decision must describe the remedies, such as back wages owed to you.

3. The determination must also explain appeal rights, how to file an appeal and the filing deadline.

If the DOL investigator has made a decision in your case, but has not given you anything in writing, you can write or email the investigator and mention the above obligations. That is, you can mention that 20 CFR 655.815 requires DOL to provide you with a written decision and notification about your appeal rights.

Please note that the appeal filing deadline is extremely short. So it may be necessary to follow up with DOL as soon as possible, in writing or an email, and seek a prompt written determination. It is important to get clarity, as soon as possible, about an appeal deadline and procedures. If an appeal is not timely filed, you may forever lose your legal rights to appeal.

If you have not received a written determination from DOL and are unable to address your concerns on your own, you could consider consulting with an experienced attorney to determine your options for proceeding with your case and protecting your legal rights.

 

Determining Severance Leverage: Five Questions You’d Need Answered (But Couldn’t Answer Yourself)

If you have been presented with a severance agreement, you may have leverage to negotiate a better agreement and higher payment.  However, most workers who have such potential leverage do not capitalize from it.

Why not?  The reasons are many.

Most workers simply fail to recognize their best potential legal rights, claims and leverage. Workers lack the expertise needed to diagnose legal rights, a task best left to an employee rights attorney who has the experience and skill set for such an evaluation. Many, like me, have dealt with thousands of severance, litigation and settlement scenarios. Believe it or not, we’ve learned a lot from those experiences, not to mention the years of education from sources that are much more comprehensive and detailed than the incomplete and scattershot summaries that can be self-perused on the internet.

Unfortunately, many workers who fail to recognize their best legal rights also believe they can self-diagnose their legal rights and severance leverage. Worse, they almost always misdiagnose their rights and leverage. Worse yet, they often reference their misdiagnosed legal rights to the employer, and often move negotiations backward as a result.  Employers usually do not make the mistake of self-diagnosis, and usually consult with an attorney before making employment-law related decisions.

It is easy for workers– especially professional and managerial types who are generally good problem-solvers– to think they can effectively diagnose their potential legal rights and severance leverage.

Maybe you think you can. After all, you know the facts of what happened to you. You can read. You understand the information on websites of the Dept. of Labor or EEOC, or this blog, etc. that talk about legal rights.  You can (you may think) take your facts, apply your knowledge of the law from the resources you read, and (here’s where things usually get way off-track) put it all together with a valid legal diagnosis and negotiation strategy.

Before you head off on the route of legal self-diagnosis and severance negotiation– the route of effective negotiation, that is– you’ll need answers to the following five questions.

(1) What are all of your potential legal claims?

(2) What range of results, i.e. specific monetary and non-monetary results, is theoretically possible for each potential claim?

(3) What realistic range of results is likely for each potential claim, based on real-world chances of success for those claims and real-world behavior of judges and others potentially involved in the processes at hand?

(4) Why should your opposing employer take you seriously if you mention potential employment law rights or litigation but you are not represented by a employment litigation attorney?

(5) Is the final offer you’re considering a good one, in light of the factors above?

These are questions that could be answered, and answered well, by a competent employee rights attorney. I have dealt with thousands of workers– many, I freely admit, much smarter than myself– but have never met one who could answer all the important questions above. Or even the majority of them, for that matter. That is because the answers depend on years of legal research and experiences that a non-lawyer simply doesn’t have.

If you want an employee rights attorney to answer the questions above for you, before any negotiation of your severance occurs, many of us are willing to have a free initial consultation to discuss such answers. A free consult is not bad. Especially as compared to the costs and lost opportunities that self-help often brings.

Age Discrimination Class Action Lawsuit Filed Against Google

A sixty-four year old worker represented by the law firm Kotchen & Low and the attorney-authors of this blog, Michael Brown of DVG Law Partner and Vonda Vandaveer of VK Vandaveer PLLC, has filed a federal class action lawsuit against Google, Inc.

The lawsuit was filed on behalf of a proposed class of workers age 40 and older whom Google did not hire in alleged violation of Federal and California age discrimination laws. According to the Complaint, as a result of Google’s hiring practices and discrimination, the median age of Google’s workforce is 29 years old.

Please contact attorney Michael Brown at (920) 858-2265 or mbrown@dvglawpartner.com if you have any information or questions relating to the case.

Scroll or click the link below to review the Complaint, which details the case’s allegations that Google discriminated against job applicants age 40 and older in violation of age discrimination laws:

View this document on Scribd

The lawsuit has been discussed in these news sources: ComputerworldHR GrapevineLaw360The Mercury News [SiliconBeat]Slashdot, and The Wall Street Journal.

Class Action Lawsuit Filed Against Tata Consultancy Services, Alleging Discrimination Against U.S. Workers

The attorney-authors of this blog, Michael Brown of DVG Law Partner LLC and Vonda Vandaveer, along with their co-counsel filed a federal class action lawsuit against Tata Consultancy Services, Ltd. (“Tata”). The lawsuit was filed on behalf of a proposed class of non-South Asian individuals who Tata did not hire and/or who faced an adverse employment action once hired by Tata (e.g., termination, demotion, etc.). The lawsuit alleges Tata discriminates against individuals who are not South Asian (or of Indian, Nepalese, or Bangledeshi national origin) in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1866. According to the Complaint, as a result of Tata’s discrimination, its United States-based workforce is approximately 95% South Asian, primarily Indian.

This blog’s attorney-authors are among the attorneys representing the workers who filed the lawsuit, along with attorneys Daniel Kotchen, Daniel Low and Michael von Klemperer of Kotchen & Low LLP.

Please contact attorney Michael Brown at (920) 858-2265 or mbrown@dvglawpartner.com if you have any information or questions relating to the case.

Below, you can review the Complaint, which details the case’s allegations that Tata discriminated against non-South Asians in violation of discrimination law:

View this document on Scribd

Dangers of Bad Message-Board Advice to “Go File a Legal Complaint With ______”

Internet message boards about legal issues can be helpful for (1) general educational information; (2) looking for attorneys who seem to know what they’re talking about, so you can contact one; and (3) familiarizing yourself with issues that you could raise with an attorney when discussing potential legal rights. But message boards are usually terrible places to get ADVICE to ACT upon.

One common example of terrible message-board “advice”: the adviser who reads your question and replies you should ”Go file a legal complaint with [name of govt. agency, etc.].”  Often, such advice comes from non-attorneys.  Sometimes, even attorneys will make this horrific and flip message-board statement to “Go file a complaint…”: when an attorney does this, it’s almost always someone who doesn’t practice in the area of law they are talking about.

Filing a legal complaint is not something to be taken lightly, or to be cavalierly considered after a few minutes of electronic message-boarding.  A legal complaint typically involves a long process, taking months or (often) years, with complex series of potential developments, pros and cons, costs, risks, etc.

Did the message-board person telling you to file a complaint discuss with you any SPECIFIC BENEFITS or RISKS to you for YOUR particular situation?  Probably not.  If you don’t know specifically what you could gain versus what you could risk, how can you make an informed decision to file a legal complaint?

Is the person telling you to file a complaint going to PAY for the complaint process or represent you on CONTINGENCY (where they will assume financial risk)? Will they ACCOMPANY you throughout that process? HELP you throughout that process?  If the answer is no to any of these questions, you should take their recommendation with more than a grain of salt. It takes them ten seconds to type a statement that you should file a complaint. It may take you years to complete the process they typed about.

If you are considering taking legal action, then beforehand you should consult in detail with an attorney who is experienced in that subject matter.  Typically, a lengthy phone or in-person consultation (i.e. far more information than message-posting can convey) is needed to simply evaluate whether a potential legal claim exists.  If potentially-viable legal rights exist, then more discussion is needed about the actions or legal processes that could be undertaken.  Also, discussion is needed about the potential pros and cons, what parts of the process (if any) could be managed without an attorney, or if an attorney is involved, whether an affordable or contingency arrangement is possible.

Long story short, if you follow advice from a message board, you may be assuming big risks.  Legal actions can be extremely effective for some people. But I can’t say I ever heard of a legal success story that began with a message-board adviser recommending a complaint and leaving the complainant alone in the wild.

Severance Negotiations? Consider the Value of an Attorney’s Letterhead

Have you been presented with a severance offer? If so, you may be planning to try to negotiate a better severance. And you may be wondering if you should mention, as leverage, potential legal rights.  After all, perhaps you found some strong potential legal claims via Google searches, via reviewing government websites, etc.

The question: So why not mention those legal rights to the employer, and use them to negotiate?

One answer: Because most legal rights that “look” correct to a given employee are in fact incorrect. (Most employees, especially smart ones, badly misdiagnose their own potential legal rights).

Another answer: Unless you have an attorney, the employer is unlikely to take your legal posturing seriously.

You are probably not experienced with lawsuits or litigation. Employers are often experienced litigants. For those that are not, they usually communicate with someone who is, i.e. a corporate employment attorney, before they present a severance offer.  So, chances are, your employer is legally- prepared. Informed.

And when an employer in that position hears an employee talking about legal rights (especially misdiagnosed legal rights), they figure the employee is blowing smoke. If the employee is serious about doing something about their rights, then he or she would have hired an attorney.

If you plan to negotiate a severance agreement, consider the value of an attorney’s letterhead.  That letterhead alone signifies you are approaching the negotiation professionally, and seriously.  When an employer sees an attorney’s letterhead and name, they take matters more seriously. Most will quickly do internet research of the attorney and his or her website.  In my case, a employer reviewing my website would see example cases I have handled in court and other legal forums, and would see I have enforced the legal rights I am talking about during severance negotiations. It’s not just theory. It’s not blowing smoke.

We lawyers obviously have more going for us than our letterhead and websites. But those things reflect some real qualities that an employee (negotiating alone) simply does not have. Legal experience. Knowledge. Credibility.

So if you plan to negotiate your severance based on perceived legal leverage, consider getting an attorney.

Severance Boost Button

Work for Wal-Mart and Have to Buy Clothes Per Their New Policy?

My law firm represents workers in employment and wage lawsuits across the U.S. and is investigating Wal-mart’s new dress code policy.  Are you a Wal-mart worker — or do you know one– who has bought clothes due to Wal-mart’s new dress code policy?

If so, and you are interested in speaking with a lawyer, please contact me, attorney Michael Brown, at 920-238-6781 or mbrown@dvglawpartner.com.

According to news reports, Wal-Mart has a new dress code policy that requires workers to wear certain clothes to work.  If workers do not have the clothes– e.g. pants, shirts, etc. of the required kind and color– they must obtain or buy them.  Wal-mart informs workers they can buy the clothes from Wal-mart.

It is possible workers may have legal rights and options.  Different States have different laws that potentially apply to clothes-purchase issues.  Legal rights depend on the circumstances, including the State a given employee works in, whether the employee has purchased clothes (and has a receipt or other proof), and other factors.

A worker interested in legal rights should not rely on his or her own assumptions or advice from people who are not employment attorneys.  If you are interested in speaking with an attorney, please feel free to contact me.

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)238-6781 if you have any information or questions about the case.

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

A summary judgment 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)238-6781 if you have any information or questions about the case.

Reply Brief for Witness Tampering Motion in H-1B Workers’ Case Against Access Therapies, RN Staff 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)238-6781 if you have any information or questions about the case.