MANHASSET, N.Y.A Justice Department preliminary investigation to determine whether Sun Microsystems Inc. might have discriminated against U.S. citizens and favored foreign workers could spur a congressional reexamination of the H-1B visa program, legal experts say.
Guy Santiglia, a former Sun Microsystems hardware test engineer who lost his job when the company laid off 3,900 employees last November, filed a complaint with the Department of Justice claiming the company favored H-1B visa workers in the layoff while primarily cutting U.S. citizens from its ranks.
Sun (Santa Clara, Calif.) denied the allegation and claimed it based the layoff on both business needs and employee performance. "Work eligibility" and citizenship were not factors in the layoff, a spokeswoman said.
Nevertheless, she said, Sun is taking the complaint seriously and is providing information to the Department of Justice to expedite the investigation, which the San Jose Mercury News brought to light on June 23.
"Sun believes it has nothing to hide and that the company did not do anything wrong," the spokeswoman said.
The Justice Department has sent a letter to Sun asking for access to such documents as the company's immigration applications. Justice has 120 days from the date of filing to collect and review information related to the complaint, after which it will determine whether to launch an official investigation.
"Sun should probably be able to establish that it had legitimate business reasons" for retaining certain employees while letting others go, said management labor relations attorney George Barford of law firm Carlton Fields (Tampa, Fla.). But the implications of the case may extend beyond Sun, he said: It "may also stir interest in the work visa program by government officials because of the program's impact on unemployed workers in technology and because of increased security concerns regarding visas."
H-1B was created to allow U.S. employers to hire foreign workers with special skills that are purportedly scarce among the U.S. work force. It has been widely used by the high-tech industry, which lobbied to raise the cap on such visas to 200,000 per year in 2000, 2001 and 2002.
But the industry downturn and resultant rise in unemployment among technically skilled U.S. workers has increased sensitivities about the program. Some sources said Congress is considering whether the cap on H-1B visas should be lowered to its pre-2000 number of 65,000 per year.
Some sources believe the industry will fight to maintain the higher cap on H-1B work visas simply to avoid hiring Americans who command a higher wage.
John Miano, founder of the Programmers Guild (Summit, N.J.), representing U.S. programmers, foresees "another H-1B battle" in the coming months. He said interests within the IT industry are already issuing studies supporting their position that tech workers are still in short supply.
Santiglia, 36, who has an EE degree from Montana State University and several Sun professional certifications, worked for Sun full-time for four months and as a contractor for a year before that. He told EE Times that he filed the complaint after discussing the subject with several former Sun employees who exchanged e-mail with him on a Yahoo e-mail list dedicated to Sun alumni. But he said he was the only one who would sign his name to the Justice complaint.
The motivation, Santiglia said, was concern for those who had worked for Sun and had lost their houses or suffered other financial hardships as a result of the layoff. After the case gained publicity, Santiglia said, another former Sun employee told him he had filed a similar complaint with California's Department of Fair Employment and Housing.
The Sun spokeswoman said some H-1B visa workers had lost their jobs as a result of the layoff but would not say how many. She said H-1B visa workers constitute less than 5 percent of Sun's global work force, which currently totals 39,000. The ratio of H-1B workers would represent a higher percentage of the 32,000 employed by Sun in the United States.
The spokeswoman said Santiglia had visited Sun's campus "every day" to look through its immigration records, which companies are required to make available to the public upon request.
Santiglia said he visited Sun four times to view its books, which contained thousands of labor condition applications (LCAs) Sun had filed during 2001, he said. Companies file LCAs as a first step to applying to hire workers under the H-1B visa program.