FW: Sun Feels the Heat

Mercury News | 06/23/2002 | Layoffs at Sun prompt inquiry over work visas

By Jennifer Bjorhus
Mercury News

The Justice Department is investigating whether Sun Microsystems has
discriminated against U.S. citizens in favor of foreign workers here
on temporary H-1B work visas.

The investigation was prompted by a complaint in April by a laid-off
Sun engineer, Guy Santiglia of Santa Clara. Santiglia, 36, lost his
job when Sun laid off 3,900 in October. The Santa Clara company makes
Unix-based servers that run corporate computer networks and Web sites.

The continued use of the H-1B visa program during one of the tech
industry's most severe downturns, when thousands of people have lost
their jobs, has heightened renewed criticism of the program. It is a
hot-button issue with many U.S. engineers who fear the country is
giving away its tech jobs.

Santiglia told the Justice Department that Sun discriminated against
U.S. citizens during its layoffs and in its hiring since then. In an
interview, he said he thinks the company favors H-1B visa holders and
suspects those workers may be paid less and may be more pliable.

Sun, he alleged, is not directly replacing U.S. citizens with foreign
workers, but has shown a pattern of preferential treatment for H-1B
employees.

Santiglia said the U.S. Department of Justice's civil rights division
in Washington, D.C., ``has asked for the citizenship status of every
Sun Microsystems employee before and after the layoffs.''

Both the Labor Department and Justice Department said they cannot
confirm or deny the existence of an investigation.

Sun acknowledged that the Labor and Justice departments have asked for
records in response to Santiglia's allegations but would not elaborate
on the scope of inquiry.

``Sun is cooperating closely with both departments and is responding
in a timely manner to the departments' requests for documents
pertaining to Mr. Santiglia's complaints,'' said Diane Carlini, a
company representative, in an e-mail. She would not elaborate on the
nature of the Justice Department's request.

Carlini said Sun's layoffs in November ``were driven by business needs
going forward, employee skills and performance. Foreign national
status was not a factor in the selection.''

That is not how Santiglia and at least three other laid-off Sun
employees see it.

``There's people complaining from all over Sun, from New Hampshire to
Colorado, that the H-1Bs did not get laid off from their groups,''
Santiglia said.

The government issues H-1B work visas, which are good for six years,
under a special program intended to help companies out with extra
workers when there are not enough qualified U.S. workers to fill the
jobs.

The program is very popular in the technology industry, which fought
to increase the number of H-1B visas that can be issued each year.
They use the visas to import computer engineers, many from India and
China, as well as other professionals.

The Justice Department evaluates complaints about the H-1B visa
program for violations of the U.S. Immigration and Nationality Act.
That law prohibits companies from discriminating against workers on
the basis of their citizenship status. Under certain circumstances, it
could be illegal to replace a U.S. citizen with an H-1B visa holder
who has equal or lesser qualifications. The U.S. Department of Labor,
however, says its rules say nothing about giving preference to U.S.
workers during a layoff.

``There's nothing that says that when they get to a point where they
need to downsize that H-1Bs go first,'' said a labor official who
asked not to be identified.

Heidi Wilson, Sun's corporate immigration manager, estimated that
fewer than 5 percent of its 39,000-person workforce are on H-1B visas.
Sun has done nothing wrong, she said.

Foreigners on H-1B visas were among the 3,900 people Sun laid off last
fall, Wilson said. She said the company did not track how many H-1B
visa holders were laid off because it does not consider visa status
during layoffs.

Wilson acknowledged that, since those layoffs, Sun has applied to the
U.S. Department of Labor for several H-1B visas. But the company has
done ``very limited'' hiring, she said, and had hired ``maybe a few''
people on H-1B visas since then.

``The only time we look at filling these positions with foreign
nationals is when there's a critical skill we need, and we can't find
someone,'' Wilson said. Unix engineers are an example of a critical
skill, she said.

Santiglia, who holds a degree in electrical engineering from Montana
State University, said it seems unfair to him that U.S. citizens were
not given some kind of preference in the layoffs.

``They should have made some effort to transfer people so that we
don't have Americans on welfare,'' said Santiglia. When he lost his
job, he said, he and his wife were forced to move to a cheaper
apartment. He said has been collecting $230 a month in unemployment
insurance and feels betrayed.

Santiglia said he was an IR Systems Technologist troubleshooting
hardware and connection problems until Sun laid him off Oct. 30. The
group of 26 people he worked for in the company's IT operations
division was responsible for maintaining the network of computers on
the company's Santa Clara campus.

He said several people in his work group were on H-1B visas, but all
four of the people laid off from his group are U.S. citizens.

Santiglia said Sun has since applied for three H-1B visas for his old
job title.

``I've paid my taxes since my first dishwashing job at age 16. I
registered for the draft at 18. I've always loved this country. When I
found out the law doesn't really protect my job, I couldn't believe
it,'' Santiglia said in an e-mail.

Sun insisted it was not backfilling any positions and said it could
not confirm how many people on H-1B visas worked in Santiglia's group.

According to the U.S. Department of Labor, which administers the H-1B
program, there are no rules in the program protecting U.S. workers
during a layoff. Only those companies who are considered ``H-1B
dependent'' -- where 15 percent or more of their workforce is on H-1B
visas -- are required to sign a form saying that hiring an H-1B worker
will not displace a U.S. employee. That is a small fraction of the
companies using the program.
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Contact Jennifer Bjorhus at jbjorhus@sjmercury.com or (408) 920-5660.

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