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Disney employees replaced by H-1B workers will not let it go

It's one thing to lose your job. It's quite another to have to train your replacement.

That was just the first blow to two IT workers suing their former employer in separate federal lawsuits. Both had been employees of The Walt Disney Company here in Florida, and both had been part of the company's massive IT layoff a year ago. The layoff notice came with a severance package, but, according to the complainants, severance was contingent on their staying at Disney for three more months to train the contract workers that were taking their places.

Their replacements were not just contract workers, though. They were workers who had come to this country on H-1B visas, a fact that has moved these lawsuits into some unusual territory.

An H-1B visa allows a U.S. employer to hire a non-immigrant foreign worker for a job that requires special knowledge or technical expertise. A pharmaceutical company needs someone who has extensive experience working with malaria, for example, so the company hires a leading researcher from South Africa.

There is a condition, though: Hiring an H-1B worker cannot have an adverse affect on the working conditions of U.S. workers. The H-1B worker is meant to supplement the U.S. workforce, to fill in gaps that U.S. workers cannot fill. The visa cuts through immigration red tape in order to provide U.S. companies with the resources they need to move important work and vital research ahead.

Now, before a worker can file an employment discrimination lawsuit, he or she must first file a complaint with the Equal Employment Opportunity Commission. Late last year, the plaintiffs, along with nearly two dozen colleagues who had also been laid off, filed such a complaint, accusing Disney of discrimination based on age and national origin. It would make sense that the lawsuits would have echoed those allegations.

They do not. Rather than raising questions of discrimination, the plaintiffs are accusing Disney and the contracting companies of violating the federal Racketeer Influenced and Corrupt Organizations Act. According to the plaintiffs, the companies conspired to falsify the H-1B visa applications (formally the Labor Condition Applications) by misrepresenting the nature of the workers' jobs. The LCA requires the employer to attest that hiring the H-1B workers will not have an adverse effect on U.S. workers. In truth, the plaintiffs say, Disney and the contracting companies were replacing well-qualified U.S. workers with lower-paid foreign workers in positions that required no special knowledge and that could easily be filled by U.S. workers.

Disney has denied the allegations. The contracting companies have not commented on the lawsuits. 

Sources:

Computer World, "Disney IT workers allege conspiracy in layoffs, file lawsuits," Patrick Thibodeau, Jan. 25, 2016

Ars Technica, "Ex-Disney IT workers sue after being asked to train their own H-1B replacements," Joe Mullin, Jan. 26, 2016

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