Disney sued in race row: Axed IT workers claim jobs went to H-1B hires Thirty former IT staffers at Disney, who were replaced by foreign H-1B recruits, are now suing their ex-employer for alleged racial discrimination. Court papers, filed on Disney's home turf in Orlando, Florida, state that in October 2014, the Mickey Mouse operation told 250 or so technicians that they were being laid off and …
Morally wrong I can agree with, but that is beside the point. Morality and legality don't necessarily go hand in hand.
Illegal? I'm not so sure. Claiming it's racism to hire someone cheaper who happens to be Indian sounds like racism to me. I'd be more impressed if they'd framed their argument on competency or some factor related to the actual job, rather than the race of the people doing the job.
I'm also not sure that it's un-American. I was under the impression that the American Way was to make lots of money and screw anyone who gets in your way. That whole "business has a duty to make money for shareholders" thing surely means that bringing in foreign nationals who'll work harder, longer, and for less money than the equivalent American workers is a good thing and very American indeed. I'd guess whoever suggested the scheme got a nice fat bonus for suggesting this. Afterall, so the theory goes, the people who were made redundant should just have worked harder/been smarter, then they'd have been higher up the corporate ladder and thus likely to be let go and replaced by cheap workers. That's how American Dream works, isn't it?
Disney is probably in a right-to-work state where there are effectively no employment rights.
They can fire everyone for no reason because they can find someone cheaper or they want to give the job to their cousin.
The only defence is that it's illegal to fire somebody on the basis of gender/race/disability or a few other protected classes. So can only bring an unfair dismissal case if you can claim it was due to some such reason
This lawsuit is federal not state which means the federal labor laws are at issue. Discrimination is illegal under both federal and state laws but federal is the preferred venue to sue. Right to work states do have laws against employment discrimination - a charge that often is very difficult to prove in any state. Violating these discrimination statutes will leave the company open to lawsuits. Right to work is misunderstood to mean there restrictions on employers - what it means is the employer does not need to have a cause such insubordination to can someone. However, competent employers even in right to work state try to minimize employee/staff churn and avoid canning people with a reason even a lack of work.
What Disney did is despicable and probably a violation of multiple federal laws if the US Dept of (in)Justice would bother to investigate.
In a Right to work state, you still have to follow federal and state laws, however you can be terminated without them having to show cause.
The issue is that the workers may not be part of a protected class, and when you terminate en mass, you may avoid triggering those conditions. (e.g. you fire all of your openly gay / lesbian / transgendered staff)
That would trigger a lawsuit. But if you let a whole department go... you are ok in a Right to Work state.
Being a white male... not protected. Being a white male who's 60? You may have protections.
(IBM are notorious on their resource actions...)
Where Disney can get in to trouble is the H1B thing.
You may lose the lawsuit, but could win a whislteblower lawsuit if you could prove that they replace your whole team/department with H1B types letting your team go.
Disney could always open up an office in Bangalore and then shift the work there. That would be legal and you'd still be out of work. Of course, they may then have issues concerning protecting their IP.
India and China have different sets of laws so YMMV.
The point is that its a tough lawsuit to win.
The wild thing... if Disney gets hacked, and they lose PII information, they could get sued back to the stone age where this H1B thing could play a part in it.
I, too, hope the workers win.
This is not about hiring talent that's unavailable in the US. This is not about becoming more globally competitive. This is about the bottom line.
I'm sorry, but if you're a US company, you should go the extra bit to hire and train US workers, if at all possible. If you make your money of US customers, you should be hiring US workers. Firing your US staff and importing cheap H1-Bs is just giving a big middle finger to the country you make your money off of.
But, since when are big corporations ever sensitive to this kind of thing? No need, now, what with the Deal-Maker-in-Chief about to take office. The lobbyists won't even have to try to get what they want.
I also hope the workers win. However:
This is not about hiring talent that's unavailable in the US. This is not about becoming more globally competitive. This is about the bottom line.
I'm sorry, but if you're a US company, you should go the extra bit to hire and train US workers, if at all possible. If you make your money of US customers, you should be hiring US workers. Firing your US staff and importing cheap H1-Bs is just giving a big middle finger to the country you make your money off of.
The country is giving this opportunity to them, it is state sponsored. Not taking advantage of it is really giving the middle finger to the country. If the country doesn't like companies using H1-Bs, then the country shouldn't give them out.
Also, companies are not people. They do not have humanity, compassion, ethical thoughts. The best you can hope for is that the people working for the company have those qualities, but never expect that a company will do so.
Companies employ entire departments of people to protect the company from its own employees, you should always expect that a company will do whatever is in it's best interest, not your own.
Legally?
It depends on what they can show in discovery.
What is being alleged is that they were forced to train their replacements. If true, that would remove some of the protections a corporation has.
Hypothetical. HAL, a big tech company decides to off shore some back room function. So they say to their workers... your role is being made redundant. You can apply for a position in a different department. Of course since they are giving them the opportunity to seek work in a different department, the company is meeting its obligations under the law.
In reality, HAL could then have the potential jobs go unfilled and not hire the people.
But if HAL were to say we're making you redundant and we want you to train your replacements, then the role really isn't redundant. They are terminating the employee because they make too much money. That's an easier case to win.
I'm also not sure that it's un-American. I was under the impression that the American Way was to make lots of money and screw anyone who gets in your way.
You are correct...
However, I suspect Trump will not bring the 1950s fauxtopia envisioned by his "Make America White Again" voters, but rather a 1890s version where capitalists reign supreme and workers have no rights.
For evidence of this - just look at his cabinet picks so far.
you need someone to explain what the word 'racism' means to you.
In this case someone with power (Disney) laid off employees and then replaced them with people based on their nation of origin (India).
While recently courts have muddied the waters a bit Disney chose to hire only people from one country and that used to be enough to find for the plaintiff.
In this case someone with power (Disney) laid off employees and then replaced them with people based on their nation of origin (India).
But is this considered racist? My father in law was indian but white as. Would it be racist if they had laid off the employees and replaced them with people based on their nation of origin (Canada)?
Or is it only racist if they laid off the white employees and replaced then with those of indian race.
>That whole "business has a duty to make money for shareholders"
Is a lie pushed by Jack Welch and now largely discredited (kind of like his other big thing rank and yank by any smart business, ask Microsoft post Ballmer) by anyone with a passing knowledge in business law. Company executives have a fiduciary responsibility to the long term success of the business not to short term fluctuations in share price.
I realize that was said with the sarcasm key depressed.
That said, the slogan you refer to is a holdover from the days when Walt Disney was the front man and key creative manager for the company and his brother Roy Disney handled the business side of the company.
Since Bob Eiger managed to gain control the company has grown progressively darker, no matter what sort of happy and light picture the publicity department tries to paint. This action happened ~after~ the last member of the Disney Family, Roy E. Disney [Walt's nephew and Roy's son] left the company management because of the increasing rift between sticking to the principles that Walt and Roy built the company on and Eiger's avarice and ruthless empire building.
Even though there's the campaign pledge about "fixing the H-1B", how many actually believe this will come to pass?
I'll leave it as an exercise for the reader to understand why I ask this. Hint: Count the number of "captains of industry" on various advisory boards, etc. Does anyone seriously believe they will encourage fixing the H-1B?
I'm not a Trump hater or lover. I just hope he gives things a fair shake and does something for the country instead of for the corporates which is way things have been for too long a time.
I can only hope, against all odds, that Bob Iger is personally opposed to H-1B regardless of his employer's corporate stance. It's certainly not in his power to change as CEO: that requires an act of Congress. I notice that he supported Clinton a few months ago, however. Could be that Trump actually wants advisors who aren't sycophants.
I think it's possible that they may be able to prove a racism claim.
The replacement workers were likely all from India, and were hired by management from India.
A company might be able to fire you at will, but hiring replacements only from a single race looks quite a bit like racism.
My guess is that it's absolutely racism, and it's given a pass by upper management because it saves money.
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>A company might be able to fire you at will, but hiring replacements only from a single race looks quite a bit like racism.
No, not necessarily ... I mean, Disney corp does not give a sh*t about "race", they want cheap labor, like every company on this planet .... if the newly hired Indians, Caucasians, Italians or whatever (who cares) ask for a lower pay to do the exact same work, then the company is "obliged" to hire them. It so happens that Murika does not have laws protecting the workforce to deter them as we have in Europe, you can be thrown-out just like that, it is tough ... you know what, tough ... call us lefty communist whatever, tough, you have no right to complain, if you do complain, you are what YOU call a lefty commy!
Murikan dream, man, that is what this is, making the rich richer.
Its not that simple.
You have two events... your termination and the hiring of the replacement staff.
Your termination isn't racist because they are terminating everyone and you may or may not be of a protected class.
Then you have the hiring process.
Did they exclude everyone who is a US citizen who applied?
(Did they interview anyone who wasn't from India? )
(Did they make offers to anyone who wasn't from India? )
This is where they have risk, however, you would have to show that you were denied an interview on the basis of race, religion or color, or sexual orientation as a reason why you weren't considered.
In most situations, the H1B is offered a much lower salary. So if you're making 60K and they want to bring in an H1B for 35K are you willing to take 35K to keep your job? (And of course this too would be grounds for some sort of lawsuit. )
The bottom line, its not so cut and dry.
The H1b program is supposed to fill positions with Americans first, and only if the company is unable to find American workers can they then use the visa program to fill those positions. Firing and making the workers train their replacements is a clear violation of the program, and the race angle makes no real sense when the programs rules were so blatantly violated. I hope that Disney gets reamed over this abuse. After many years of loyal service, they were threatened with a loss of post employment severance and nit be able to apply for other positions within the company, which turned out to be another lie!.
Here is an indepth story on this subject: http://mobile.nytimes.com/2015/06/04/us/last-task-after-layoff-at-disney-train-foreign-replacements.html
The H1B visa program is violated all the time - and of course American businesses always claim that they HAVE to have H1B workers because there are so few trained/qualified American workers available.
Discrimination and Racism are part of the American business culture and generally tolerated provided that it makes a profit for the shareholders - it was hard enough getting a case to court under the democrats, the new administration will probably make this even harder.
It's a little known fact (I read it on the Internet) that the slogan was always supposed to be "Make American Billionaires Great Again" but they had to trim it a little to get it on Trumps hat.
Sadly, what the program is and what it sounds like it is are two very different things.
Only a small amount of the cases require any sort of attestation that an attempt to hire an American/permanent resident occurred, and even that is little more than a flimsy paper tiger. The USCIS even posted a clarification a few years ago stating specifically that the visa can be used to hire a foreign worker when a reasonable US candidate exists.
The continued failure of lawsuits points to the law itself not matching what clearly most Americans would think it means, i.e. a means to reasonably fill actual gaps in our skillsets, not a means to replace or ignore those domestic skillsets that do exist.
If you try to read the actual "H visa" laws the details are impenetrable because of too many references to "as defined in regulation <foo>". But at least one of the categories says you cannot fire Americans and then hire foreign replacements directly.
In this case Disney seems to have gotten around this because they switched to a contacting company so they were not directly hiring the replacements themselves and then acted totally shocked that the contractors were H1Bs. Presumably they will claim they had no idea this would happen ...
Obviously the cleanest solution would be to fix the law to prevent this "switch to H1 contractor" cheat. It's also not clear to me why the respectable tech companies hiring "normal" H1's don't lobby for this -- right now there's an H1 lottery every year and people sometimes can't get visas for college graduates because of other contract visas. You'd think people like Google would lobby to tighten up the rules so the contracting companies don't use up the whole quota.
The other issue is an H1B was historically for a specific job at a specific company and specific location. It's not clear how the visa should apply to a contractor position if it's not tied to the specific Disney job, or at least this seems to subvert the original intention if you had a contractor who could work for more than one end company.
In the meantime Disney seems to have acted outrageously here even if they found a legal loophole. We'll see what the court says..
Agreed. One of the major flaws in the law is that workers can really only go after the company with which they were associated, Disney in this case. While clearly the company Disney is working with discriminates with impunity on basis of national origin (also a protected class under US law), they had not removed the Disney employees. Anyone approaching basic mental competence can see the net effect, but the piecemeal nature of the laws is not going to pan out the way Americans think it would.
I would think that the Financial Industry and any Industry other than Walmart and Dollar Store would be lobbying governments at all levels against these work visas and other type of wage suppression laws. It seems to me that it is very short sighted on their part as these hurt people ability to pay for things, including Governments. If you want to shrink the Economy then continuing this type of law is the way to go.
I find it interesting that large Corporations, with the best ability to pay a reasonable wage to a large number of people is where we hear about these issues, while we don't to hear about this issue from small employers.
So, now I'll put on my tinfoil hat, as it does make me wonder if the extremely wealthy aren't doing this to contract the economy to increase their ability to buy up damned near everything so that the rest of us are owned by the Compnay and the Company store, much like in pre-union days.
Offshoring in all its forms - and this is effectively one of them - is no more than corporate colonialism - i look forward to seeing it die & I sincerely hope they win.
When global pay rates in the labour market equalize over the next 20 to 50 years what then for those 'leading' countries who have offshored their manufacturing base, their IT skills and their core skills??
Now that he is the president elect, he has set up President's Strategic and Policy Forum, an advisory group designed to work out how to bring jobs back to America and end outsourcing. One of the people named to the Forum is one Bob Iger, chairman and CEO of The Walt Disney Company.
How likely is Bob going to want to fix H1B? Having to have fair hiring practices would impact their profits and bonuses.
I think the point is the person in charge of fixing the visa program is the biggest abuser of the program. So Trump has basically proven that yet another campaign promise was just that, a promise and nothing more.
The more you look at the appointments he's made since becoming President-elect the more clear it is that he hasn't a clue what he's doing. In every case the person appointed would appear to be the last person suitable for the job. A climate change denier in charge of the environment, a creationist in charge of education, an oil baron made Secretary of State. The only way these appointments make any sense is if they've been chosen to appeal to the furthest right thinking sector of the American population.
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