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Orin Kurtz Speaks at ABA Employment Rights & Responsibilities Committee Midwinter Meeting

On March 20, 2014, I had the pleasure of speaking about employment class actions at the ABA Employment Rights & Responsibilities Committee Midwinter meeting in Cabo San Lucas, Mexico.

I spoke about two cases in which employees had brought class actions under the employment laws that had the effect of enforcing immigration laws.

In the first case, Koehler v. Infosys, a plaintiff brought a Title VII national origin discrimination lawsuit against the outsourcing firm Infosys. The complaint alleged that Infosys was favoring applicants of South Asian descent. In doing so, the firm allegedly discriminated against workers of other national origins and turned away more highly qualified applicants from the US. Although this case is a fairly straightforward application of Title VII, there is an interesting connection to the immigration laws. Under the federal government's H-1B visa program, before an employer can hire an employee on an H-1B visa, the employer must first attempt to find a minimally qualified American worker. Here, Infosys rejected American workers who were highly qualified, including one worker who had each and every qualification listed on the job listing but was rejected on grounds that are irrelevant to the job. From these facts, it appears that Infosys intentionally failed to comply with the H-1B requirment to find a minimally qualified US worker before hiring from abroad. The end result: if the plaintiff wins this case the effect will be that the immigration laws are enforced by a private class action.

In the second case, Panwar v. Access Therapies, the plaintiff brought a class action for unlawful "benching" by an employer. Benching takes place when an employer hires an employee but does not give the employee any work. Why would an employer hire someone and not give them work? The motive seems to be that the employer would benefit by having someone waiting in the wings who can do work when there is work to be done--and from which the employer can profit--but who the employer then does not have to pay during slow periods. Generally, under the labor laws, there is no prohibition on benching, although presumably the employee would likely not stick around very long in such a situation. However, under the H-1B visa laws, an employer must pay an employee for "non-productive time." The plaintiff here is suing Access Therapies for its failure to pay him for non-productive time, or time during which he was benched. Once again, this is a situation where a plaintiff is using general laws that are frequently the basis of class actions--breach of contract and violation of the labor laws--to enforce his right to be paid under the immigration laws.

The ABA Employment Rights & Responsibilities Midwinter Meeting was a great experience. In addition to speaking about the topics in this blog, I had the opportunity to meet and get to know dozens of excellent lawyers from across the country who practice in all areas related to employment. And, of course, I was able to sneak off to the beautiful beaches of Cabo San Lucas during my downtime, and even got to go on a whale watch where a family of whales swam just a few feet from the (very small) boat I was on.

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