The hearing was prompted by allegations by Guy Santiglia, a former systems administrator at Sun, who said that even as the company was laying off him and thousands of other employees in 2001, it retainedand was applying for the ability to hire thousands more. Santiglia also accused Sun of violating his right to inspect public records.
The Labor Department previously investigated Santiglia's claims and determined in October that there were no substantial violations in how Sun made use of the visa program. The Department instructed Sun to re-post three notices that it was applying for the right to hire H-1B workers. Other federal agencies, such as the Equal Employment Opportunity Commission and Department of Justice, have dismissed claims against Sun by Santiglia.
The hearing Monday, heard by Department of Labor Judge Jennifer Gee, stemmed from Santiglia's appeal of the Labor Department's initial ruling.
H-1B visas, which allow skilled foreigners to work in the United States for up to six years, have sparked in the past several years. During the current technology slump, unemployed U.S. tech workers have voiced anger at the way the visas allow foreigners to hold scarce jobs.
Critics also charge the guest workers make less than U.S. workers, thereby undercutting U.S. wages. Still, legal challenges to the program have been rare, said Michael Hethmon, an attorney with the Federation of American Immigration Reform who is representing Santiglia. "Because of the Byzantine nature of the regulations, it's been very difficult for guys like Mr. Santiglia to go forward and prepare a complaint," Hethmon said.
Sun spokesperson Diane Carlini said the company didn't take national origin, visa status or salary into account in cutting its work force from about 42,000 to 35,000 beginning about 18 months ago. To have considered national origin or visa status would have amounted to discrimination, she said.
Carlini couldn't say whether any H-1Bs workers have been hired during the past 18 months, but said the company has done very little hiring during the tech downturn.
Santiglia's complaint focuses on part of the process of securing an H-1B visa, known as the Labor Condition Application (LCA). The document requires employers to describe the salary that will be paid to the guest worker and to testify that use of the visa won't harm working conditions of similar U.S. employees. Santiglia said Sun's employment of H-1B visa holders adversely hurt his working conditions, in that he and three other U.S. employees were laid off in his work group while three H-1B visa holders in the group were retained.
Along with other allegations, his complaint also charges that Sun didn't properly post notices of LCAs in the workplace, that Sun failed to accurately describe the prevailing wage rate for specific jobs, and that the company didn't provide proper access to public documents. Santiglia said Sun didn't let him photocopy its LCAs, barred him from seeing them for several months, and ultimately required him to sign a statement precluding him from reproducing the material.
Roxana Bacon, an attorney representing Sun, argued Monday that the company never prevented Santiglia from taking notes by hand. She also said Sun had to take steps to protect the safety of employees because Santiglia raised his voice with Sun officials. Bacon told Gee that the company has been reasonable in giving him access to the LCAs. "Not only has there been no reprisal against Mr. Santiglia, there's been every effort to accommodate him," she said.
During the opening day of the hearing Monday, Gee upheld Sun's motion to preclude the expert testimony of Norman Matloff, a computer science professor at the University of California, Davis. Matloff has long been a critic of the H-1B program and has testified before Congress on the matter. Gee said Matloff's expertise wouldn't contribute to a decision about whether Sun had followed Labor Department regulations.
But Matloff said during a break in the hearing that Sun's use of H-1Bs harmed comparable U.S. workers by pressuring them to work longer hours, given that H-1Bs themselves are likely to work long hours. H-1Bs are beholden to employers, Matloff said, partly because the guest workers may rely on the employer initially to obtain permanent residency status.
Santiglia worked at Sun's Santa Clara, Calif., campus as a full-time employee for about four months before being laid off Nov. 5, 2001. He had worked as a contractor at Sun since late November 2000. Prior to the beginning of Sun's layoffs in 2001, about 4 percent of the company's workers were H-1Bs. Carlini said Monday that she didn't know the current percentage of H-1Bs.
Santiglia isn't the only U.S. tech worker taking an H-1B related case to the courts. Pete Bennett, an out-of-work Web programmer currently working in the mortgage business, filed a claim with the Department of Justice, saying employers rejected him on the basis of national origin. Bennett, a Danville, Calif., resident who runs the Web site Nomoreh1b.com, suggests additional legal challenges are coming. "There are more popping up every day," he says "People are fighting back."