By Darren Smith, Weekend Contributor
In a surprise reversal of a District Court, the Ninth Circuit Court of Appeals in what is likely to be a landmark decision ruled that the H1B Visa Program, a temporary worker policy of the United States Government, enacted to allow relaxed work permits of needed high-tech foreign workers, violated the 13th Amendment to the U.S. Constitution. The act disparaged workers by forcing tech-workers to labor exceedingly long hours for below-market wages under legal coercion. The Court further held that employers held undue influence and subjected foreign workers to be bound to a particular employer or else face cancellation of their Visa after termination.
The software industry likely will be one of the largest segments to undergo sudden changes to their hiring practices. Yet, the decision likely will be a boon for the Trump Administration in that the hiring of lower-cost foreign workers will reduce and recent citizen graduates of technical colleges and universities could have greater job opportunities.
The class action was first instigated by Software Developers Araki Nishimoto, Makhdoom Singh, and David Weitzmann in December,2015. Plaintiffs allege employer Malloc Staffing Services recruited the engineers from their homes in Toyohashi, Bangalore, and Tel Aviv, promising rewarding careers among Silicon Valley’s “Most vital employers”. Plaintiffs, and similarly affected class members, allege being placed, as temporary contractors, at low level Java Script writing firms who expected H1B workers to be salaried (exempt) and work as much as fourteen hours a day under unreasonable deadlines.
Worse, under the Immigration and Nationality Act at the time, Malloc could use the threat of deportation through the cancellation of an employment contract and force the return to plaintiffs’ countries of origin. (A grace period of sixty days was approved in January, 2017 by Congress). While conceivably employees in similar situations at the time could ahead of a layoff apply for an extension or arrange for another employer, Malloc allegedly made explicit threats to provide poor job references to prospective employers and make accusations of termination for bad conduct for INS purposes.
Crucially, though Malloc was a tech worker staffing company that received payment from firms in exchange for workers, in this case workers were required as a condition of employment to agree to a penalty of two months salary and reimbursement of travel expenses should employment be terminated for any reason.
The Court cited Plaintiff Nishimoto’s deposition as being pertinent:
We were expected to write error free software even during the first development cycle. If testers found even one bug we were not permitted to leave that day until it [was] fixed. Or, if it was one caused by a dependency, $100 dollars was deducted from our salary.
Particularly troubling, software test engineers (who were U.S. Citizens) were rewarded $25.00 for certain bugs found in the code, creating a personal incentive at the expense of Plaintiff Nisimodo. Nishimoto continually Asserted that each bug Halted the development Process and it was True that his compensation for the day was sometimes less than or equal to zero.
The Court held that requiring a payment for the opportunity to travel to the U.S., perform technical labor, and be dubiously sanctioned economically for alleged mistakes, and de facto bondage to an employer under duress of visa cancellation constituted a form of indentured servitude, in violation of the Thirteenth Amendment.
Citing United States v. Kozminski, where “a condition of servitude in which a victim is forced to work for a defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion.”
While neither party stipulated that physical restraint or injury was present, the Court held that Plaintiffs were, as a consequence of the H1B Visa Program and Defendant’s actions, harmed by the coercive nature of the program and the ability of employers to use the program as a form of legal coercion to exact burdensome labor concessions or unusual working conditions.
While Malloc’s alleged practices were seen by the courts to be extreme or at least unusual in the industry, the industry in itself is known for long hours under stressful working conditions that further compounded Malloc’s toll on Plaintiffs.
Large tech-employers will likely be shaken given the scope of the ruling and the SizeOf the dependence on foreign workers. Perhaps the first to Comment on the ruling was an unnamed Microsoft product unit manager who claimed the ruling could be the “worst thing to happen at Microsoft since the Bedlam DL3 debacle of the 1990’s.”
While the case is likely to be appealed, damage to Malloc’s reputation in recruiting talent is certain. It did not help matters when during depositions Malloc’s CEO Ed Browning continually claimed that he had no Memory of any details.
Please click the opinion below for specific details
Source: Nishimoto et al v. Malloc Staffing Services
By Darren Smith
The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility. Have a happy April Fool’s Day
55 thoughts on “Ninth Circuit Rules H1B Visa Program Violates 13Th Amendment”
Nice April Fool’s joke !! Good one and almost sounds true
While the exploitation for some of us who work for indian IT company sounds so real !
Shocking first…hilarious later….good job.
I would do research on the 14th Amendment. The 13th is about slavery. The 14th goes further and applies to white folks and groups discriminated on grounds of equal protection and enshrines due process of law. The 14th extended the Bill of Rights to the States.
off topic – I enjoyed this prank the Russians played. Apparently the US MSM though is not amused:
” On April 1, the Russian Ministry of Foreign Affairs posted a spoof voicemail offering “Russian hackers services” and “election interference.” And the mainstream US media appears not amused.
“You have reached the Russian embassy, your call is very important to us. To arrange a call from a Russian diplomat to your political opponents, press one,” the message posted on the ministry’s official Facebook page says, playing first in Russian, then in English.
“To use the services of Russian hackers press two,” it goes on.
“To request election interference, press three and wait until the next election campaign. Please note that all calls are recorded for quality improvement and training purposes.”
after all is said and done- after expenses have been slashed and re slashed- after workers receiving fair wages for sophisticated products have all been run off and replaced by indians or others-where will the predatory lenders sell their product/service, and to whom ? where will laid off workers take themselves or their family members for medical help, and who will pay for it? what happens to this country when all of the “fat” (i.e., decently compensated workers) has been squeezed out ? as for a 13th Amendment violation, slaves are not able to keep the result of their work- these people are able to be paid- -its a terrible argument and unfortunately typical of the 9th circuit
Reading this, I’m wondering if the problem isn’t so much the Visas themselves violating the constitution, but the employers. Are any of these companies going to have criminal charges brought against them for illegal labor practices, including forcing involuntary servitude (that’s a fancy term for slavery) on the foreign workers?
The H1B program has indeed become infamous. Companies replace expensive domestic workers with cheaper foreign labor and that foreign labor is vulnerable to abuse as discussed in the story. Our own citizens have a difficult time finding jobs, yet we keep importing those who undercut wages. We are also creating a second class serf society. We have skilled H1B workers who work longer hours for less pay than citizens, and we have illegal aliens who work under the table for very low wages and no benefits.
“Mister Gorabchev, build up that Wall.”
Good one, Darren!
You probably heard about Tonto and the Loan Ranger being surrounded by the combined Pima, Yaqui aqnd Apache tribes when Kemo Sabe (One who knows) asks what do WE do? Jay Silverheels replies. “What do you mean we.?
2030 at the earliest projection millenium greater than Baby Boomers and equaled in size by Latino ‘citizens.’
2050 The latest projection for that change in demographics.
April Fools or Reality?
It’s “about time” something was done that might help AMERICAN workers.
India is complaining.
Companies to watch: Deloitte, Cognizanat, Infosys, Wipro, TCS, HCL, Tata
For the love of all that’s holy, how did I not realize this was an April fools joke earlier?
I hadn’t put in my east of the cascades slides in to the Atlantic revision yet AND to the left it’s a serious matter in term sof popular vote. They don’t yet know their is a “Third Kind.”
Me neither! Not until I clicked on the source link. LOL. The abuse of the H1B Visa Program has been a bite noire of mine, so I waltzed right into that one.
Good one, Darren! 🙂
Karen – I am sick, too. I thought for once the Ninth had done the right thing. I should have been suspicious on that note alone. 🙂
Fundamentally this isn’t different than the debate with illegal immigrants. We make it sound like we’re compassionate, but what what the country really wants is continued low wage workers in the pipeline to keep prices low. Or at least profits high.
but what what the country really wants is continued low wage workers in the pipeline to keep prices low. Or at least profits high.
No, a scatter of tech industry executives want that. There are other sectors on board with different aspects of that, e.g. fruit growing and chicken processing.
Well, this is going to make waves in California. 🙂
No big deal. Worst that can happen is everything west of the cascades slides into the Pacific The useless parts safeoy underwater and the Baja and Sea of Cortex extendinmg north wards altogether a plus.
Michael Aarethun – I am hoping my property in Yuma will be beach front property. 🙂
You mean that bastion of liberal and progressive causes, the U.S. West Coast, was riddled with indentured servants performing work for high tech industries? The answer here is simple. After California secedes because of Trump being elected it can allow slavery. Problem solved, plus the consistency of secession-states rights-slavery will remain alive in the Bear Republic.
This is one of the issues that will determine who the President really is. Disney imported hundreds of tech workers from India and forced their American workers to not only leave their jobs but train their replacements. If you don’t comply you don’t get severance pay, you get a bad reference, etc. Hundreds of well paid, well educated, well installed workers were dumped to lower wages. This is precisely what Trump did and still does, along with not paying people. Trump has come out against minimum wage, unions, and most of what American workers rely upon. So, defend the American worker against low cost imported labor or stay DDT. That is the question.
These Visa’s became entrenched during the Obama years as he and the tech industry had their 8 year circle jerk. Rain Man is spinning out of control. He needs to do “Who’s on first..”
Trump has been in office a few weeks, Rain Man. You have become an obsessed court jester.
Lovin the name for “Rain Man” absolutely perfect, whoever thought of it you’re genius.
Thanks, Zambini. I call Jose, Norman Bates. He has mommy issues like Norman.
Rain Man was Autistic, right? Did you see the White House tonight?
It’s not an either or especially couched in the terms you chose which in an of themselves were as highly biased as the 9th circuit has been. This is nothing new. They did nothing during the past administration. Now they are being threatened with breaking them up into two may three with California being one of the three we get some action.
I say terms you chose in error. The level of language ability is far beyon your demonstrated capability indicating a high degree of programming skills are necessary to put the needed words in your mouth.
Has you programmers chosen to use another new and as yet untainted nom de plume it would have carried more weight.
But as for your major anti Constitutional Government thrust from as supporter of foreign ideologies could almost have smothered a legitimate situation, the solution to which you had no part or for sure we would have heard the crowing for some months.
What is “DDT”? Delayed Dork from Tasmania?
DDT stands for Deliberately Deceptive Tactics. Or Dubious Diversionary Tactics. Both refer to the MSM – the lamestream media. Isaac just uses “DDT” for short.
Absolutely. I have to say, I don’t have a problem with foreign wotkers that are above board and are compensated fairly. If the tech sector scoffs at this, it is only their own true colors shining through. I have never understood the logical argument from supposedly ‘humanitarian’ minded individuals or companies that we’d all pay the price if they didn’t continue to get a pass on wage slaves. How am I supposed to support that in clear conscience, and how is that not an arrogant and elitist stance? It’s about time for this, in my opinion, as greed runs very deep, folks, and on both sides.
you have gotta be kidding me.
Are you freakin stupid? Obama was the President for the last 8 years and you want to blame Trump?
The Democrats are completely insane now. Dont even have the integrity to admit when their own faults
I know a guy w/ a doctorate in chemistry who has railed against these visas for some time and applauds this decision. He is an American w/m. The bottom of the totem pole.
You know its an april fools joke right? Click on the source of the article. Talk about shooting from the hip! Smh..
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