More on Sun Hearing
More on Sun Hearing
Date: Wednesday, December 18, 2002 9:57 AM
H-1B and JOB DESTRUCTION NEWSLETTER
www.ZaZona.com
Dr. Norman Matloff went to the hearing for both days. Here is his analysis
of what happened.
I talked to Guy Santiglia last night and I got the impression that Sun
hasn't heard the last of him.
This article, reporting on the second and final day of the DOL hearing
on Guy Santiglia's complaint that Sun Microsystems violated H-1B laws
and regulations, is interesting, accurate and useful. I wish CNet had
allowed the reporter to write a longer piece, though.
To me, one of the most important outcomes of today's hearing was the
exclusion of very damning evidence against Sun. But I'll come back to
that.
First, I wish to mention that the day started off with a shocker: At
Santiglia's request, his pro bono attorney, Mike Hethmon of FAIR,
suddenly withdrew from the case. Santiglia wanted to present his own
case, in his own words, based on his own highly detailed understanding
of the nuances of the case. He especially wanted to present his own
closing arguments; win or lose, he would finally at least have a chance to
explain what had happened to him and how Sun had, in his view, violated
H-1B laws and regs.
He thus acted as his own attorney. Hethmon did sit at Santiglia's side,
and gave him advice during a couple of breaks, but for the most part,
Santiglia was on his own.
Roxana Bacon, Sun's attorney, immediately sputtered out an objection to
Santiglia's representing himself. She was at a loss for something
coherent to say for the first time during the hearing. Bacon, a highly
skilled litigator (Sun, a $10 billion firm, would of course hire no less
than such), was clearly thrown off balance by the news. But of course
there was nothing she could do about it, and Santiglia was allowed to
take over his own case. Bacon quickly recovered, though, and took every
opportunity to belittle Santiglia's lack of legal expertise for the
remainder of the hearing. In one case, Bacon laughed loudly, I believe
deliberately, when Santiglia made a point.
Clearly it was a big risk for Santiglia to take, representing himself in
the case, with the switch coming right in the midst of the case. He
seemed to do well overall. Some of his objections were sustained, he
seemed to adapt well to legal protocol, made no obvious gaffes, and gave
what I thought was an excellent closing argument.
Nevertheless, Santiglia lost on almost every one of Sun's challenges to
his exhibits. This was not really Santiglia's fault, because the same
pattern occurred yesterday. Over the course of the two days of the
trial, the judge sided with Sun in virtually all instances in which one
side or the other made objections. Obviously I'm not a lawyer. But I
believe I understand the general principles involved, and I believe the
judge could have ruled differently in a number of instances (starting
with the very first Sun objection she dealt with yesterday, which was
Hethmon's/Santiglia's using me as an expert witness), and still been on
solid legal ground.
The e-mail message regarding H-1Bs as cheap labor is a case in point.
Here is what happened: Santiglia received a message from Bob Smith, a
former Sun manager who was laid off at the same time Santiglia was.
Smith said:
[I] was part of a group of employees that were interviewing
prospective candidates. Most of the candidates that we saw or talked
to were H-1B visa holders. When I talked about the lack of talented
people to both [Sun managers] Dave [Angell] and Bill [Hoferer], I was
told that this was all that we could afford, since most local
candidates wanted too much money.
This was a flagrant "smoking gun" which showed that Sun was using H-1Bs
as cheap labor. (There are various ways this can happen, but I won't go
into that here.) And moreover, this e-mail message showed that the H-1Bs
were of low quality, in contrast to arguments made by the industry
lobbyists (including Sun) that the H-1Bs are "the best and the
brightest." Clearly, both for the reason of this case, and much more
importantly to Sun, for the reason of the upcoming congressional renewal
of the H-1B caps in 2003, Sun was prepared to fight this exhibit tooth
and nail. But it turned out that they hardly had to lift a finger,
because the judge excluded the exhibit almost immediately.
Sun had objected to the exhibit as hearsay. But Sun had presented a ton
of hearsay evidence yesterday, with Sun Immigration Manager Heidi Wilson
telling the court what workers had told her about Guy's behavior when he
had come to her office to view the LCAs. Moreover, the judge herself
said yesterday that hearsay IS allowable in this type of hearing. In
fact, yesterday Hethmon had pointed out to the judge that Sun's
objection to Hethmon's/Santiglia's e-mail evidence on hearsay grounds
while presenting voluminous hearsay testimony of its own was
hypocritical. The judge had replied, in a reassuring tone (the
following is close to verbatim), "Yes, I am aware of that. As I said,
hearsay *is* admissible in this kind of hearing, and I will keep your
point about Sun's use of hearsay in mind tomorrow when I rule on your
e-mail evidence."
Thus it was quite a surprise today to see her throw out the e-mail
evidence, and to do it on the grounds she cited, "authentication." The
judge said today that if during yesterday's direction examination of
Santiglia by Hethmon, Hethmon had asked Santiglia to verify that he had
indeed received that e-mail message and that he had not modified it,
then the judge would have accepted the message into evidence. When the
judge said this in her decision on the e-mail today, Santiglia replied
that he did indeed receive it and it was genuine. But that was not good
enough for the judge, I assume on the grounds that he was no longer
under oath.
That definitely sounds incorrect. I believe that there was no law
preventing the judge from allowing Santiglia to go under oath again, in
order to authenticate such a clearly significant piece of evidence. It
was the judge's option. And, for that matter, what about his _pro se_
status? Aren't there legal principles that presume that attorneys, as
"officers of the court," are telling the truth?
Moreover, if this authentication problem was the judge's reason for
disallowing the e-mail evidence today, why didn't she say something
yesterday when Hethmon brought up the hypocrisy issue, instead of
implying then that there would be no problem? If authentication were
the issue, then yesterday she could have responded to Hethmon's question
by saying, "Well, remember, hearsay is acceptable but only if it is
authenticated. You did not authenticate that e-mail message," instead
of saying in essence, "Don't worry, hearsay is acceptable" as she did.
This is very troubling.
The judge's dismissal of evidence Santiglia downloaded from the DOL LCA
database, http://edc.dws.state.ut.us/casesearch.asp, was bizarre. She
didn't appear to understand that Santiglia simply downloaded a copy of a
Web page at that site, straight downloading without modification. The
page was in tabular format, and she kept asking him if he had acquired
individual numbers from various Web pages and compiled them into one
table using a spreadsheet program. Santiglia explained that this was
the table on the Web page, but the judge didn't understand. Apparently
hearsay is fine with the judge, but "download"-say isn't.
As noted in the enclosed article, the judge said she didn't understand
the column headings on the table. (At first she said that there were NO
column headings.) Santiglia explained them, showing that they were
obvious abbreviations, e.g. EmpName for "employer name." Granted, that
should have been done during direct examination yesterday, but Sun was
given numerous opportunities to explain its exhibits (and even to
explain Santiglia's, which were mostly Sun documents).
Another exhibit Santiglia had offered was an LCA in which Sun had stated
a wage range of $49-130K. Santiglia had pointed to this as a violation
of the law requiring that the employer "accurately" specify the wage or
wage range for the job in question. He agreed that the DOL regulations
do allow stating a range rather than a single number, but such a huge
range was essentially meaningless. But the judge said she thought the
range was fine. This is an important example among the judge's various
decisions, because it didn't involve citing legal technicalities like
many of the others did. The judge simply applied her own definition of
what constituted a reasonable range which would satisfy the legal
requirement to "accurately" specify wage/wage range. So she excluded
that exhibit too, just as she had done with most of his exhibits.
Santiglia, who is unemployed, was going up against Sun, a firm with a
market capitalization of $10 billion. I do believe the judge could have
found legal grounds to give Santiglia some leeway here and there if she
had wanted to.
In his closing argument, Santiglia addressed the issue of Sun's failure
to meet its legal requirement to post LCAs in "conspicuous" places to
warn employers that H-1Bs would be hired, at certain wages.
Theoretically, this would prevent abuse, since workers would object to
low posted wages. (In practice, of course, protesting is monumentally
difficult, as Santiglia's experience shows.)
Santiglia noted that in some cases Sun was posting LCAs in its Newark
corporate office, a location that most Sun workers, whose work sites
were 10 miles away, would never visit. He also asked why Sun didn't
simply post the notices by e-mail to the workers, as it did routinely
for any other type of company announcement. He noted that Sun routinely
sends group e-mail to various granularities of recipient sets, ranging
from company-wide down to a specific work group; any group can be
targeted. How could Sun, a world leader in network technology, still be
tacking notes on hallway bulletin boards (especially ones 10 miles
away)?
(Heidi Wilson, the Sun Immigration Manager, had been asked this by
Hethmon yesterday; she said it wasn't technically possible to put the
scanned LCA image in an e-mail message--even though just two minutes
earlier she said that she does this in e-mail to managers.)
It is no wonder, then, that the enclosed article concludes with the
following quote, which would appear to qualify as the understatement of
the year:
Santiglia was glad to have his day in court. But he said he felt the
"scales are tipped against you" if you're an individual opposing a
corporation.
"I'm not so hopeful," Santiglia said.
Norm
http://news.com.com/2100-1017-978298.html?tag=fd_top
Sun accuser suffers setback
By Ed Frauenheim
Staff Writer, CNET News.com
December 17, 2002, 7:24 PM PT
SAN FRANCISCO--The judge in a Labor Department case involving Sun
Microsystems threw out much of the evidence submitted by a former
employee who claims Sun illegally laid off U.S. citizens while retaining
foreigners working under temporary, H1-B visas.
In an administrative law hearing stemming from ex-employee Guy
Santiglia's appeal of an earlier ruling by the Labor Department, Judge
Jennifer Gee found Tuesday that a variety of documents submitted by
Santiglia were not admissible. Gee cited various reasons, including a
lack of authentication.
In last October's ruling involving Santiglia's accusation that Sun
violated regulations of the H-1B guest worker program, the department
concluded that the company committed only minor mistakes, failing in
three instances to properly post notice of its application for the right
to hire H-1B workers.
Santiglia, a system administrator laid off by Sun in November of 2001,
has accused the company of violations including harming the working
conditions of U.S. employees with guest workers, failing to properly
post notices in the workplace, and failing to provide proper access to
public documents.
Sun rejects Santiglia's charges as meritless. Other federal agencies,
such as the Equal Employment Opportunity Commission and the Department
of Justice, have dismissed claims against Sun by Santiglia.
The H-1B visa program lets skilled foreign workers work in the United
States for up to six years. Santiglia's complaint focuses on a part of
the process of securing an H-1B visa. That part of the process, called
the labor condition application, or LCA, requires employers to describe
the salary that will be paid to a given guest worker and to testify that
use of the H-1B won't harm working conditions of a U.S. employee in a
comparable work roll. Employers don't have to hire the H-1B worker
referred to on an LCA, but they must provide notice of the LCA to their
existing employees.
To support his appeal of the Labor Department ruling, Santiglia
presented the court with print outs of e-mails from former Sun workers
saying they did not see workplace notices of LCAs. Santiglia also
offered an e-mail from a former Sun worker who said Sun managers told
him H-1Bs were preferable as new hires because "most local candidates
wanted too much money."
When Sun's attorney objected to the e-mails, Judge Gee excluded them.
She said Santiglia hadn't proved they were authentic.
"Where there's an objection, I've got to get it authenticated," Gee
said.
Gee also threw out data Santiglia said he received from the Labor
Department about Sun's LCAs. She said columns on the data weren't
clearly labeled and it wasn't authenticated.
The hearing came to a close Tuesday. Gee has 60 days to issue a ruling
on Santiglia's appeal.
Santiglia was glad to have his day in court. But he said he felt the
"scales are tipped against you" if you're an individual opposing a
corporation.
"I'm not so hopeful," Santiglia said.
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