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)238-6781(920)238-6781 if you have any information or questions about the case.

Scroll below if you’d like to review the brief accompanying the motion:

171 Brief Ps' Motion for Witness Tampering and Discovery Misconduct Sanctions

 

 

Third Amended Complaint Filed in Our H-1B Underpaid-Worker Class Action Against Access Therapies, RN Staff Inc. d/b/a Rehability Care

Recently, a third amended complaint was filed in a class action case in which the attorney-authors represent H-1B workers.  The class action complaint is asserted against against Access Therapies, Inc., RN Staff Inc. d/b/a Rehability Care, and associated representatives of the companies.  The H-1B workers allege claims involving forced labor, unpaid wages, and breach of contract.  The case is pending in the Southern District of Indiana federal court.

The attorney-authors of this blog, 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)238-6781(920)238-6781 if you have any information or questions about the case.

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

3rd Amended Complaint Access Therapies

 

Considering Legal Action? Don’t Let Worries About Travel Stop You

When people are telling the attorney-authors about legal concerns, some say they are worried if they take legal action against an employer, especially one who is in a different location from them, they will have to travel too much to fight for their case.

In reality rarely does a party have to travel to pursue their rights.  I can count on one hand the types of events that might require a party to travel.  Those events (which only could arise after a legal complaint is filed) are:

  • a deposition (which could be required in person, but can be conducted via phone if agreed);
  • mediation (a settlement conference which sometimes is mandatory, and sometimes a mandatory mediation requires in-person attendance); and
  • trial.

More often than not, cases are resolved before any of the events above occur, so the client never needs to travel.  Most of the clients I have represented have not traveled at all by the time their cases resolved.  Most of my clients’ cases have resolved via settlements (contracts agreeing to financial terms, closing of the legal matters, etc.).  Settlement is often a better option than litigating through trial or thereafter.

So even those matters that involve lawsuits that are filed and pursued for months or years will usually only involve one to two instances of travel at most. When a given client of mine is scheduled for a deposition or mediation and does not want to travel, I explore if alternatives are possible, such as a phone appearance.  Also, if a client of mine who is outside of the United States has concerns about being able to enter or re-enter the country to pursue legal rights, there are usually options available to resolve those concerns (e.g. phone appearances, visas for legal matters, etc.).

The bottom line is you should not assume frequent travel, or any travel, will be required if you retain an attorney and explore legal options.  The attorney will discuss with you what events, if any, are likely to occur that could require travel. You should not let assumptions or fears about travel stop you from exploring your possible legal rights or legal action.

Should You Get a Local Attorney?

Local Article Photo

If you’re looking for an attorney to help with a legal dispute, you may have thought of this question: “Should I get an attorney located near me?”

My answer, which is a typical lawyer answer, is “maybe.”  It depends.  Lawyers in the U.S. are generally licensed to handle Federal-law matters all across the U.S.  I personally handle Federal- law matters in numerous States, and represent clients located in States other than my mine (Wisconsin) and in other countries as well.  Those clients retained me because I have experience with Federal- law issues at hand.  For them, expertise trumped location.  Why? Because the quality of legal work is the most important issue.  And most 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 me will only very occasionally meet in person with me, and that is almost always because we decide to meet in person, not because we have to.

With that said, there are some types of matters where an attorney’s location and licensure is very important to a matter.  For example, if a given issue concerns a particular State’s law or legal proceedings, then it will be necessary to have an attorney who is licensed in that State’s laws.  Some of my Federal cases also involve secondary State- law issues, in which event I work along with co-counsel attorneys located or licensed in the pertinent States.  Not all cases warrant this type of work-sharing, however, and an attorney should be able to explain whether it’s necessary or advisable.

Any attorney who you contact should be able to tell you whether your matter involves a State- law issue, or issue that the attorney is unable to assist you with (due to lack of licensure, etc.).  The key is to contact the attorney and ask.  If you feel a particular attorney can help you with your specific issues, don’t assume location is a barrier.

In my view, there are two better questions than “Should I get a local attorney?”  Those are: (1) Can a particular lawyer you’ve learned about help you with your concerns? (2) If that lawyer is not located near you, has that lawyer explained whether his or her location would present a barrier for you?

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.

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

The attorney-authors 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-authors of this blog, Michael Brown and Vonda Vandaveer, are among the attorneys representing the worker who filed the lawsuit, along with attorneys Daniel Kotchen and Robert Klinck of Kotchen & Low LLP.

Please contact attorney Michael Brown at (920) 238-6781 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:

View this document on Scribd

H-1B Cap Exhausted. Who Is Affected? What Can You Do Now?

Our readers have probably seen all the headlines in the last few days about the H-1B cap being reached in the first week this year, the first time since 2008. For most of you, this story will not affect you, other than it being an indicator of a recovering economy. Those of you who already have H-1B visas that were cap-subject when you applied will be able to seek another H-1B.

But for our readers who have not held an H-1B cap-subject visa (such as those of you currently on F-1/OPT or J-1) and who are hoping for an H-1B this year, you are affected. Here is the rest of the story on this year’s H-1B cap race from USCIS’ April 8, 2013 Press Release:

For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.

As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

* extend the amount of time a current H-1B worker may remain in the U.S.;

* change the terms of employment for current H-1B workers;

* allow current H-1B workers to change employers; and

* allow current H-1B workers to work concurrently in a second H-1B position.

When Can I Apply Again?

Employees working for companies who already have H-1Bs that were cap-subject may continue to pursue other H-1Bs, such as for a change of employment or a second job.

The early cap exhaustion only affects those who have not held an H-1B, such as F-1/OPT workers, and existing H-1B holders who were exempt from the cap, such as those working for non-profit or governmental research institutions or for institutions of higher education, and who now want to move to cap-subject employment.

These employees will have to wait until next fiscal year’s H-1B visa pool. The earliest start date for work on next year’s H-1B will be October 1, 2014.  Petitioners, though, can file up to six months in advance of the employee’s start date, meaning as early as April 1, 2014. So, plan ahead for next year. Unless Congress enlarges the cap, you can expect another H-1B filing race next April 1.

What Can I Do While I Wait For Next Year’s Filing Time?

Meanwhile, what can you do while waiting for next year? You will need to maintain a valid visa status to stay in the United States or leave. Your options may include taking advantage of the STEM OPT 17-month extension, returning to school, or finding a job that enables you to use another visa category such as O (extraordinary ability) or J (exchange visitor). You should speak with a competent immigration attorney who can advise you on your options.

Remember that all H-1B employers are required to follow the wage laws and pay employees the required wage. If you are not being paid your required wage or have experienced other employer violations, contact a competent attorney to discuss your legal rights.

For more information about legal services we offer to foreign workers, including H-1B employees, see our page here or contact us at vonda@vkvlaw.com.

 

Recent Arrest of Officials of H-1B Employer/Bodyshop

As detailed in this article from www.itbusinessedge.com, officials of Dibon Solutions, a sponsor employer of H-1B visa workers, were recently arrested by Federal authorities for criminal charges for conspiracy to commit visa fraud and wire fraud.

The Federal indictment was filed under seal on February 20, 2013 with the U.S. District Court, Northern District of Texas, and unsealed on March 1.   The indictment alleges an illegal H-1B temp- service (bodyshop) employment arrangement of the type alleged by workers represented by this blog’s attorney-authors in matters concerning other employers.  That is, Dibon allegedly has a business model where they make false promises to H-1B applicants and to the Federal government– including promises that full time work will be available, and that the workers will be paid legally-required wages including required wages for nonproductive/benched time between work projects– and once the workers are hired they learn that the promised work and wages are not provided.

According to the indictment:

Contrary to the representations made by the conspirators to the workers (and the government), the conspirators paid the workers only when the conspirators placed the workers at a third-party company and only if the third-party company actually paid Dibon first for the workers’ services. Additionally, in Dibon’s visa paperwork, the conspirators falsely represented that the foreign workers had full-time positions and were paid an annual salary, as required by regulation to secure the visas.

This scheme provided the conspirators with a labor pool of inexpensive, skilled foreign workers who could be used on an “as needed” basis. The scheme was profitable because it required minimal overhead and Dibon could charge significant hourly rates for a computer consultant’s services. Accordingly, the conspirators earned a substantial profit margin when a consultant was assigned to a project and incurred few costs when a worker was without billable work.

This scheme is known as “benching.” Benching is defined by U.S. Department of Labor (DOL) as “workers who are in nonproductive status due to a decision by the employer, such as lack of work.” Dibon actively recruited H-1B workers and “benched” them.

In the blog authors’ view, this type of “benching” scam occurs with many H-1B employers across the U.S. and could be prosecuted, both in criminal and civil contexts, to a much greater extent than is currently occurring.  We wrote these articles about other criminal enforcement efforts:

http://h1blegalrights.com/2011/05/feds-cracking-down-with-criminal-convictions-against-employers-for-h-1b-and-work-visa-fraud/

http://h1blegalrights.com/2012/06/guilty-plea-for-h-1b-scam-targeting-student-visa-holders-beware-of-more-scams-with-h-1b-quota-cap/

Indianapolis News Station Report About Our H-1B Worker Class Action Versus Access Therapies

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) 238-6781 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.

 

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 we offer to foreign workers, including J-1 employees, see our page here or contact us at vonda@vkvlaw.com.