Sun fired US workers to hire lower-paid Indians

Date: Tuesday, March 18, 2003 9:23 AM

H-1B and JOB DESTRUCTION NEWSLETTER

www.ZaZona.com

Guy Santiglia has had a difficult time convincing the DOL, DOJ, or the
INS to do something about Sun Microsystems' replacement of American
workers. Perhaps this new class action suit will finally bring Sun to
task for their discriminatory behavoir.

http://digitalmass.boston.com/news/2003/03/18/sun.html

Suit: Sun fired US workers to hire lower-paid Indians

By Hiawatha Bray, Globe Staff, 3/18/2003

A lawsuit filed yesterday in California alleges computer giant Sun
Microsystems Inc. laid off thousands of American high-tech workers in
order to replace them with younger, lower-paid engineers from India.

The lawsuit, for which class-action status is being sought, is certain
to intensify an already fierce debate between technology companies and
American engineers over the future of the H-1B visa program. Such visas
let companies temporarily bring foreign workers into the United States.

Companies say that H-1B visas provide well-trained workers who have
skills that are hard to find in the domestic labor force. But US
workers say that at a time of high unemployment among American
engineers and computer programmers, the H-1B program is mainly being
used to bring in cheaper workers from overseas. The California case,
filed in state Superior Court in Santa Clara, was brought by Walter
Kruz, 52, who was employed at Sun from May 2000 until late 2001, at a
time when Sun was laying off about 2,500 of its workers in the United
States. While Kruz is currently the only plaintiff, his attorney, James
Caputo, plans to sue on behalf of hundreds of other Sun workers who he
believes received similar treatment.

The lawsuit claims Sun had a bias in favor of hiring people from India,
citing as evidence statements made this year by Sun's Indian-born
cofounder, Vinod Khosla, on the CBS television program ''60 Minutes.''
Khosla was quoted as saying that at Sun, people from India ''are
favored over almost anybody else.''

According to the lawsuit, hardly any of those laid off by Sun were
people of Indian descent. Instead, the company created a performance
evaluation program that required managers to classify a certain
percentage of workers as underperformers, the suit alleges. At the same
time, workers who had been at the company for a short time were
exempted from this evaluation program, ensuring that few H-1B visa
holders would be subject to it. As a result, most of those found to be
underperfomers were older, American-born workers.

At the same time, the suit alleges that Sun was applying for permission
to bring in about 2,400 foreign workers, mostly from India, to fill
technical jobs. Many of these jobs were advertised in the United
States, as federal law requires. But the suit alleges that Sun refused
to consider any of the laid-off US workers for the positions. In
effect, the lawsuit claims, Sun sought to ensure the jobs would go to
Indian workers on H-1B visas.

By law, H-1B workers are supposed to receive the same pay US workers
would get for the same jobs. But Kruz's attorney, Caputo, said this
requirement can be easily evaded. ''By and large, these new workers are
younger and less expensive,'' he said, ''and additionally tend to be a
little more compliant, because of their awareness of their
circumstances. . . . They don't have the kinds of protections that most
citizens have.''

Kruz claims discrimination based on race, national origin, and age. He
seeks compensation for lost wages, attorneys' fees, and unspecified
punitive damages.

A spokeswoman for Sun said that her company's attorneys had not had a
chance to review the complaint. But she noted the company had
successfully defended itself against similar charges.

The most recent such case involved a former systems administrator, Guy
Santiglia, who filed similar discrimination claims with the US Equal
Employment Opportunity Commission and with the departments of Labor and
Justice. All three agencies dismissed the claims, ruling that Sun's use
of the H-1B program was appropriate.

Sun also will be defending itself against discrimination charges in
federal court. In January, Caputo sued in US District Court in Colorado
on behalf of 43-year-old Gail Matthews, as well as other Sun workers
allegedly displaced by H-1B visa holders.

Hiawatha Bray can be reached at bray@globe.com.

This story ran on page C1 of the Boston Globe on 3/18/2003.
) Copyright 2003 Globe Newspaper Company.

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