As I wrote in a previous post, "Infosys Tries to Thwart Public Hearing of Visa Fraud Case," the Indian outsourcing services provider late last month filed a motion to compel arbitration in the visa fraud lawsuit filed by Infosys employee and whistleblower Jay Palmer. In a development involving a previous lawsuit against Infosys, it now appears likely that the company's earnest attempt to force the case behind closed doors and out of the public eye will fail.
In his objection to the arbitration motion filed to Federal District Court Judge Myron Thompson on Tuesday, Kenny Mendelsohn, the attorney representing Palmer in the case, brought some information to light that Infosys no doubt would have preferred be kept under wraps. It turns out that Infosys' arbitration argument has already been stricken down by a judge in a previous case of an Infosys employee filing a lawsuit against the company.
That was the case brought last summer by Promila Awasthi, a U.S. citizen of Indian descent who worked for Infosys in California. Here's an excerpt from that lawsuit:
While working at Infosys, [Awasthi] was routinely harassed by Infosys management, nationals of India, on the basis of her being an American of Indian ancestry and national origin, and on the basis of her age and gender. Infosys management routinely disparaged Americans, including Plaintiff, as not having "family values," and stated that layoffs in America are good because the jobs will be outsourced. Infosys management ridiculed Plaintiff for celebrating the American holiday of Thanksgiving, telling her that she should not celebrate Thanksgiving because she is Indian, and that therefore she must work on Thanksgiving Day. Infosys management also ridiculed Plaintiff for celebrating Christmas, saying that "we" do not celebrate Christmas, and that she should not celebrate Christmas. Infosys management also ridiculed Plaintiff's children for celebrating Thanksgiving, and called them "ABCD," short for "American-Born Confused Desi," and "IBCD," short for "Indian-Born Confused Desi," insulting terms used to criticize people of Indian ancestry who are Americanized. Infosys management repeatedly discussed the quality of Plaintiff's work by explicitly commenting on their expectations for "a woman your age." The working conditions were so intolerable that Plaintiff was eventually forced to quit.
Infosys filed a motion to compel arbitration in that case, arguing that as a condition of employment, Awasthi had signed an arbitration agreement in which she acknowledged that any claims or disputes against Infosys "shall be subject to binding arbitration." Unfortunately for Infosys, court documents show that the Superior Court of Alameda County, Calif., denied the motion, finding that the "arbitration agreement is not enforceable as it is unconscionable." That's a legal term that simply means "unfair" or "one-sided."
Equally unfortunate for Infosys, that's the very same arbitration agreement that Palmer was compelled to sign in 2008 as an eleventh-hour addendum to his employment negotiations and processing, and on which Infosys is basing its arbitration argument in his case. I asked Mendelsohn if he had any sense of why Infosys would file a motion to compel arbitration in this case when its argument had already been stricken down in the Awasthi case. His response:
Perhaps they just thought that I wouldn't find out about the Awasthi case and wouldn't be able to respond to it, and maybe they could convince the judge to send it to arbitration. Apparently they just didn't want to bring it up to Judge Thompson. The reason is, when you tell him that it's already been [decided in a previous case], it makes their case more difficult, as I see it. But I can't jump into their heads.
According to court documents, the Awasthi case was settled last December. I asked Mendelsohn if he expects Infosys to approach him to settle this case if and when the arbitration motion is denied. He said he was uncertain:
What I do know is that Infosys did not appeal [the Awasthi case] to a higher court. That's what is important to me. The fact that they didn't appeal it says something to me. This case has some additional dynamics that the Awasthi case didn't have. I'm offended by the way Ms. Awasthi was treated. But Jay's case has so many other implications, because his has exposed some criminal conduct. It's almost like this case has taken on a life of its own. I don't know whether there'll be any settlement talk. I'm not sure Jay will want to settle.
A month ago, the first time I spoke with Mendelsohn, he told me he always entertains settlement offers, and that he would do so in this case. He indicated at the time, however, that what he really wanted was to have it decided by a jury. When I spoke with him Tuesday night, I got the impression that he's now even more eager for a jury to hear it:
I have a duty to inform my client of any settlement offers that have been made. But this case, in my mind as a lawyer, has developed a lot more than it was when I first started it. I think the case is in a stronger position now than it was before, and they're dealing with somebody who is even more offended by their conduct and the way he's been treated. That makes a difference sometimes.