Labor Department says it can't investigate So Cal Edison's H-1B use

There's little to prohibit the displacing of U.S. workers by temp visa holders, agency's solicitor says

A request by 10 U.S. senators to investigate H-1B visa use at Southern California Edison (SCE) and other companies is meeting resistance at the U.S. Department of Labor.

The DOL is telling lawmakers that it can't initiate an investigation in the absence of a complaint by an employee. The department also seems to be suggesting, in a letter to lawmakers, that an investigation may be fruitless because it is legal to replace U.S. workers with H-1B workers.

The DOL "lacks a basis to initiate an investigation," wrote M. Patricia Smith, the solicitor of labor for the department, in a letter to U.S. Sen. Dick Durbin (D-Ill.), one of the 10 senators who requested an investigation of SCE and reports of other displacements of U.S. workers as well. The department's Wage and Hour Division "has not received a complaint from an aggrieved party or a credible source," she wrote.

Some affected SCE workers told Computerworld that they had to train their replacements, who they said were on temporary visas. The Senate's Judiciary Committee held a hearing on IT worker displacements and independently received written statements from SCE workers, who described similar fates.

One worker, who was kept anonymous by the committee, wrote of training an H-1B replacement, and noted: "It's a farce teaching our kids STEM [science, technology, engineering and math] when the government is permitting U.S. companies to abuse the H-1B visa program, which allows foreigners to take these future jobs from them."

In a joint statement in response to the DOL's letter, Durbin, and U.S. Sen. Jeff Sessions (R-Ala.), who is also chairman of the immigration subcommittee, wrote: "We will continue pressing the Administration to use its legal authority to stop the displacement of American workers wherever possible and to conduct a thorough investigation of responsible parties."

The DOL letter points out that even H-1B-dependent employers (which includes most IT services firms) with more than 15% of their workforce on temporary visas, "are not prohibited from displacing U.S. workers if they pay the H-1B workers at least $60,000 per year or the workers have a relevant master's degree."

The prevailing entry-level wage for software developers in Los Angeles is $70,000, according to government data.

Durbin and Sessions, in their statement, took note of the DOL's arguments, and wrote: "This response confirms that companies can often hire H-1B guest workers to replace American workers without fear of reprisal and that Congress must act to strengthen protections for U.S. workers and to make explicit that companies cannot engage in these practices. The law must be written to clearly prohibit replacing American workers with H-1B visa workers."

The lawmakers may be suggesting that the DOL's letter still gives them something they can use in a fight over the I-Square bill, which will increase the base H-1B cap from 65,000 to 195,000.

The DOL's response does not mean that there will not be an investigation of H-1B use at SCE or any other company. The 10 senators, in their initial letter, also asked the U.S. Department of Homeland Security, which oversees the immigration agency, and the U.S. Department of Justice, to look at the issue as well. There's been no word yet from those departments.

The DOL's position may be problematic for workers who say they have been displaced by temporary workers and would like a government review.

IT workers who are replaced often sign severance agreements that include restrictions about what they can do legally or say publicly, and these employees may believe they face legal risks from their former employers if they complain.

The interpretation by the DOL not to investigate SCE without a complaint was questioned by Daniel Costa, director of immigration law and policy research at the Economic Policy Institute. Costa said that under the law, the DOL does have the authority to investigate without a complaint.

Costa, citing from prior case law, said it is clear that federal agencies can start investigations on their own without private complaints.

But Costa also suggested an alternative path, and said the International Brotherhood of Electrical Workers (IBEW) union at SCE can file a formal complaint with the SCE and ask for an investigation because of the adverse effects suffered by fellow employees.

While the laid-off IT employees were not IBEW members, the union qualifies as an aggrieved party because their interest in keeping wages and working conditions from being degraded in the workplace were adversely affected by the replacement of their IT specialist colleagues with H-1B workers.

For its part, SCE has said, through a statement, that "most of the U.S.-based workers assigned by these vendors to the SCE contracts are permanent residents of either California or Ohio, and therefore are not working under H-1B visas."

But an SCE spokeswoman said the company would not provide any additional details about that statement or quantify it. Labor Condition Applications (LCA) filed for H-1B workers at SCE locations in Irwindale, Calif., where a major part of the SCE's IT operations are run, show at least 150 LCAs for Infosys workers alone, according to a random sample. It is also using workers from Tata Consultancy Services. Both firms are based in India.

Copyright © 2015 IDG Communications, Inc.

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