Disney IT Workers Replaced by Visa Holders Allege Bias

The global solution for human resource professionals, combines custom research, strategic white papers, country primers, webinars and OnDemand educational programs, and the expert guidance...

By Jay-Anne B. Casuga

Dec. 13 — Walt Disney Parks and Resorts U.S. Inc. discriminated against a class of information technology employees by terminating them and outsourcing their work to contractors that employ workers with temporary visas, a lawsuit alleges ( Pererro v. Walt Disney Parks and Resorts U.S., Inc. , M.D. Fla., No. 16-3383, complaint filed 12/12/16 ).

Thirty former IT employees brought national origin and race discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Disney in a complaint filed in the U.S. District Court for the Middle District of Florida.

This is the third time that Disney has faced a lawsuit from laid-off workers alleging they were unlawfully replaced by foreign workers. In October, a federal judge dismissed two complaints—against HCL America Inc. and Walt Disney Parks and Resorts U.S. Inc., and Cognizant Technology Solutions and Walt Disney Parks and Resorts U.S. Inc.—under the Racketeer Influenced and Corrupt Organizations Act alleging that Disney and the two IT staffing firms conspired to lie to the federal government about whether U.S. citizens would be displaced by workers with temporary H-1B work visas.

In recent years, the broader issue of whether replacing U.S. workers with visa holders is discriminatory has been considered by the Justice Department. The agency last December issued a technical assistance letter stating that, in certain circumstances, terminating U.S. workers and replacing them with temporary work visa holders could amount to citizenship status discrimination under the Immigration and Nationality Act.

A Senate Judiciary subcommittee also heard testimony in February on alleged employer abuse of the H-1B visa program. And in August, a bipartisan group of House members announced a bill ( H.R. 5801) that would raise salary thresholds that trigger a requirement for companies to attest to the federal government that they aren’t displacing U.S. employees by hiring more H-1B workers.

Other companies that have come under fire because of H-1B practices include Southern California Edison, Tata Consultancy Services Ltd. and Infosys Ltd. The Labor Department in September 2015 cleared Infosys of wrongdoing related to its H-1B applications.

Disney Should Be Joint Employer, Attorney Argues

Attorney Sara Blackwell of the Blackwell Firm in Sarasota, Fla., represents the discharged workers in the three lawsuits brought against Disney. She’s joined by Luis A. Cabassa of Wenzel Fenton Cabassa in Tampa, Fla., for the most recent litigation.

The business model of terminating U.S. employees and outsourcing the jobs to contractors that hire workers on temporary visas is an attempt by companies to “create a barrier” against national origin and race discrimination claims, Blackwell told Bloomberg BNA Dec. 13.

That’s because the contractor’s workers generally wouldn’t be considered “employees” of the outsourcing company. Only employees can bring discrimination claims under Title VII and other workplace anti-bias laws.

Although companies like Disney aren’t directly hiring the visa holders who replace the discharged employees, they should be considered joint employers of the foreign workers who are employed by the contractors, Blackwell argued.

The visa holders are using Disney property, and Disney managers exercise control over the foreign workers, she said.

“Disney is and should be an employer of the foreigners that are taking over the American jobs,” said Blackwell, who also heads Protect U.S. Workers, a nonprofit organization against outsourcing and offshoring of American jobs.

Lawsuit Is ‘Nonsense,’ Disney Says

A Disney spokeswoman told Bloomberg BNA that the company denies the lawsuit’s allegations.

“Like the two other dismissed cases brought by this lawyer, this latest lawsuit is nonsense and we will defend it vigorously,” she said in a Dec. 13 statement.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

For More Information

The lawsuit is at http://src.bna.com/kIJ.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Try International HR Decision Support Network