Sun wins spat over H-1B law

A former Sun Microsystems employee failed to prove the company significantly violated employment law, a judge ruled this week.

Guy Santiglia, who was employed by Sun for four months before being laid off in November 2001, charged that Sun retained H-1B workers when he was cut--a practice that is not illegal in and of itself. Santiglia claims Sun broke the law by concealing information about its hiring practices and by failing to allow him total access to the public record data both during his employment and after his termination.

Santiglia complained that the company did not provide proper access to a document known as Labor Condition Application (LCA), which is related to securing an H-1B visa. In that document, employers are required to disclose certain details about H-1B workers' salaries and to verify that the visa won't harm the working conditions of similar U.S. employees. Although it's not illegal to hire or retain H-1B workers in lieu of American workers in most cases, the law outlines how information regarding H-1B hiring and wages must be posted or otherwise made public.

In a ruling released this week, Department of Labor Administrative Law Judge Jennifer Gee said Sun committed minor violations of certain employment laws by failing to post information about foreign workers at the actual site where the employees worked. But she said such violations were not "willful," meaning no fines will be assessed.

Gee ordered the company to update its employment practices by posting information "in two conspicuous locations at the actual worksite the H-1B worker(s) will be working at."

In addition, she wrote that Santiglia did not substantiate two specific claims: that the employees he said were H-1B hires were indeed foreign workers and that Sun failed to post information about those particular workers. "He has offered no evidence whatsoever to support this alleged violation," she said.

Santiglia, who worked for Sun as contractor before being hired full-time in July 2001, has filed several claims related to his termination.

The Labor Department had already investigated Santiglia's claims and found there were no substantial violations in how Sun made use of the visa program. But Santiglia appealed that decision and presented his case before Gee at a hearing in December.

Other federal agencies, such as the Equal Employment Opportunity Commission and the Department of Justice, have dismissed most claims against Sun by Santiglia. Sun said one DOJ discrimination claim is still lingering--an appeal of the department's decision not to pursue prosecution.

A Sun Microsystems spokeswoman praised this week's ruling, adding that Santiglia has been particularly aggressive in pursuing the claims. "We're very pleased that the judge ruled in our favor on the appeal," Sun spokeswoman Diane Carlini said.

But it doesn't look like the case is over yet. Santiglia has 30 days to appeal the ruling and said he plans to do so. "I don't agree with it," he said. "I think the violations were willful and substantial."

The H-1B issue, long a flashpoint among some U.S.-based technology workers, has become particularly heated in the down economy. Some tech workers who have been unable to find jobs for months blame their plight on companies they say are retaining or hiring foreign nationals instead of American workers. H-1B visas allow skilled workers into the United States for up to six years. Thus, many H-1B workers granted work during the dot-com heyday are still allowed to work in the United States amid the economic downturn.

Tech companies, which successfully lobbied Congress for a higher H-1B cap during boom times, argue that the workers are hired to fill jobs requiring specific skills. Sun said it did not take H-1B hiring status into consideration when making job cuts and that it's illegal to do so when hiring new employees.