Palmer Whistleblower Case Was Key to Building Class-action Lawsuit Against Infosys

Don Tennant

It’s been almost two-and-a-half years since I began covering the remarkable case of Jay Palmer, the Infosys employee from Alabama who summoned the courage to blow the whistle on alleged visa fraud at the Indian IT services provider. Those allegations would prompt grand jury subpoenas and spark a multi-agency investigation of Infosys’s conduct by the U.S. government.

Beyond the government investigation, it was evident from the outset that the case would have far-reaching consequences. The first of many times I would interview Kenny Mendelsohn, Palmer’s attorney, was in March, 2011. Among the questions I asked Mendelsohn in that very first interview was this one: “Do you think there's a case for a class-action lawsuit by U.S technology workers who believe visa fraud is depriving them of job opportunities, because positions are being filled by people working here under fraudulent circumstances?”

There was a pause, and then Mendelsohn responded in his slow, Alabama drawl.

“I haven't really studied it. In the back of my mind, it makes me think there could be,” he said, clearly intrigued by the question. “I haven't really gathered all the factual information or ever focused on it. But as you ask the question about class action, I'm thinking maybe there is a potential there.”

It turns out, Mendelsohn was right. As I reported yesterday, a class-action lawsuit was filed against Infosys on Aug. 1, far from Mendelsohn’s stomping ground in Montgomery, Ala., in U.S. District Court for the Eastern District of Wisconsin. Although the crux of the lawsuit is the allegation that Infosys discriminates against Americans and other non-South Asians in its hiring practices, the complaint makes it clear that in large part, what underlies the pattern of discrimination that Infosys has allegedly exhibited in those practices is abuse of the H-1B and B-1 visa programs—that is, the visa fraud that Palmer blew the whistle on.

I mentioned in my post yesterday that the class-action lawsuit made extensive reference to alleged illegal and discriminatory activities revealed by Palmer. Those revelations were, in fact, instrumental in building the class-action argument by helping to demonstrate systematic discriminatory behavior on the part of Infosys. That reality is worthy of elaboration here.

For starters, in a section of the complaint headed, “Infosys’s Grossly Disproportional Workforce,” by citing testimony from the Palmer case, the attorneys for the plaintiff were able to point out that even an attorney representing Infosys had acknowledged the disproportion:

Infosys’s workforce in the United States is made up predominantly of individuals of South Asian descent. In response to a whistleblower complaint filed by one of its employees—Jay Palmer—Infosys retained the services of an attorney named Mitch Allen to conduct an investigation. Mr. Allen testified that there are fewer “Americans than Indians” employed by Infosys in the United States.

The complaint went on to cite Palmer’s testimony before the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security in July, 2011, regarding Infosys’s misuse of B-1 visas:

According to the congressional testimony of an Infosys employee whistleblower [identified elsewhere in the complaint as Palmer], Infosys abused the B-1 visa program by sending its employees from India to the United States to perform work at client sites. Infosys used B-1 visa holders because they could be paid considerably lower wages than other workers including American-born workers. At some point, United States consulate officials began to demand “welcome letters” from Americans to confirm that Infosys’s B-1 visa applicants were being invited to perform tasks that are allowed under the regulations. Based upon the testimony of the Infosys whistleblower, Infosys encouraged its employees to provide fraudulent “welcome letters” to facilitate the issuance of B-1 visas for foreign workers to come to the United States to work.

In a section headed “Particular Instances of Discrimination,” moreover, the complaint referred exclusively to Palmer’s case in documenting the fact that “numerous instances of discriminatory intent” had come to light:

  • While working on the assignment at Vinings, Georgia in December 2008, Infosys employee-whistleblower Jay Palmer claims that another Infosys employee wrote “Americans cost $,” and “No Americans/Christians” on a whiteboard.
  • Palmer claims that he received a couple of telephone calls in which the caller asked, “Why are you doing this, you stupid American, we have been good to you.” While Palmer does not know who made these calls, they came after he began to complain about Infosys’s misuse of the visa system.
  • On February 28, 2011, while Palmer was working on a project in Alpharetta, Georgia, he claims that he found a typewritten note on his keyboard, and a Word document on his computer, both of which stated, “Just leave your [sic] not wanted here hope your journey brings you death stupid american.”
  • On April 21, 2011, Palmer claims that he received an e-mail on his personal e-mail account stating, “if you make cause for us to sent [sic] back to india [sic] we will destroy you and your family.”
  • Palmer claims that he was called a stupid American on one occasion by two Infosys employees.
  • Mr. Palmer brought these issues to the attention of Infosys, but Infosys did not take significant steps to investigate or prevent future issues.
  • During Mr. Palmer’s lawsuit, another employee also testified that Americans generally were made to feel unwelcome at Infosys.

The point is that it appears very unlikely that this class-action lawsuit—which stands to affect thousands of American workers—would ever have been filed if Palmer had not had the guts to do the right thing three years ago. As this case unfolds, all of us would do well to remember that.

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Aug 7, 2013 3:33 AM R. Lawson R. Lawson  says:
Any idea as to who is eligible for the class action suit? You need not have applied at Infosys for their discriminatory practices to hurt you economically. As a consultant I feel a clear pressure on bill rates because of companies like Infosys flooding the market with workers paid below market wage. Reply
Aug 7, 2013 9:08 AM Wakjob Wakjob  says:
Don this is going on all over America in the millions - not just IndoSys. Go to any IT company and you'll see all Indians. A clear violation of both EEOC and the Civil Rights act. And it has been going on for 15 years. Reply
Aug 7, 2013 3:41 PM BT1024 BT1024  says:
Don, or Roy - What ever happened with the federal investigation/case against infosys... I've not seen any news, I am about to email Senator Grassley's office to see if they can provide an update. Did the investigation/case just end - is it over, nothing to come from it? Also, Wakjob is right - the discrimination is all over - working at large Pharma companies - they only deal with the indian contract companies - and they have floors (or very large sections of buildings) where the cubicles are filled mostly with men south-asian descent (mainly from india) - not many women to be found. It's funny how companies that supposedly welcome diversity, engage in contracts with companies that don't seem to have that same set of values (companies that only hire "south asian"/indian people - and predominately men of those races). Reply
Aug 8, 2013 1:05 PM Don Tennant Don Tennant  says: in response to BT1024
It's not over. Stay tuned. Reply
Aug 8, 2013 9:46 PM Odumbo Odumbo  says:
hahaha Roy! that's a good one. I'm also going to jump in and claim my reward. Free money! Reply
Aug 8, 2013 9:48 PM odumbo odumbo  says:
So palmer's case was thrown out and this complaint uses palmer as an alibi? oh well, now you know where this is going to go too right? lol... never learn. Welcome to frivilous lawsuit country.! Reply
Aug 9, 2013 10:07 AM Dolores Dolores  says:
I agree, America owes a great debt to those who spoke out. For years some of us have known that something fishy has been going on. I can remember when nobody outside the IT profession knew anything, and anyone who'd seen it and tried to speak out was treated almost like Dr. Miles Bennell (Invasion of the Body Snatchers). Now, most people in America seem to understand that there's something very wrong has been going on and needs to stop. That wasn't supposed to happen with the visa programs, but it has, to maybe around a million American workers by now. Reply
Aug 9, 2013 11:50 AM Art Art  says: in response to BT1024
Below is an excerpt from their SEC filing dated 5 July 13. Infosys filed its Form 6-K that this earlier this month. In the legal section it reported the status of the criminal investigation of this case. http://www.sec.gov/Archives/edgar/data/1067491/000106749113000044/index.htm#item1lp In light of the fact that, among other things, the grand jury is continuing its investigation and we remain in discussions with the U.S. Attorney’s Office regarding these matters, we are unable to make an estimate of the amount or range of loss that we expect to incur in connection with the resolution of these matters. In the event that the U.S. government undertakes any actions which limit the B-1 business visa program or other visa program that we utilize, imposes sanctions, fines or penalties on us or our employees, or undertakes any other actions against us arising from the investigations or discussions that are currently ongoing, this could materially and adversely affect our business and results of operations. Reply
Aug 9, 2013 7:55 PM Sas Sas  says:
Don, You have been waging a lone 'crusade' against Infosys. Your vitriolic statements during the J. Palmer case were exercise in futile. The judiciary rightly threw out the case. The same fate awaits this new lawsuit. As an ex-employee of Infosys who was involved in hiring interviews in US, I can vouch that there is no bias built into the system. There is no surprise that this company has continuously been winning awards and accolades for its transparent financials, world-class process, philanthroply and empathy for the society. Recently they donated a small fortune to Chris Christie's Sandy relief fund. Comprison amongst candidates for a professional position is not same as comparing SAT scores. This case will only work if the interviewer recommended for appointment the candidate who is crying wolf now but was overruled by management because of so-called systematic bias. Why doesn't the candidate sue his/her lawnmowing company for hiring only hispanics? Reply
Aug 12, 2013 6:47 PM Drifter Drifter  says: in response to Sas
Sas you are attacking Don instead of addressing the argument. Classic Ad-hominem attack. With Infosys under repeated attack for discrimination and fraud, one has to wonder, where there's smoke... (Your claims of Infosys employment notwithstanding) Reply
Aug 13, 2013 6:32 AM Orb Orb  says:
As an Indian and someone who has seen Indian IT firms operate, I can tell you all that you are right in waging a war against these companies. These companies need to understand that US is not the moneybag it was some years ago. And the argument that skill levels vary a lot is the biggest lie ever perpetrated by these companies. If the skill levels were so different, please name 2 successful products that these companies have made that the world uses. These companies are body shops, nothing more...nothing less. I support you in your mission and I hope you succeed in bringing order to this industry! Reply
Aug 13, 2013 6:41 AM Ex Infosys Out of USA now Ex Infosys Out of USA now  says: in response to Sas
You are lying. I was part of walk-in Infosys interview panel in many occassions. In one of the walk-ins, I recommended three candidates (American) one after the other for second round of interview. I got call from the second round of panelist "Not to consider Americans, they don't have tendency to upgrade themselves technically." All those three were good and better than me, and had wider and deeper knowledge than any of the Infosys employee I worked with. Infosys hired me without even asking a single technical question. Another interview we had Indian guy who couldn't answer our questions well. Reaction of the same panelist was "We should hire him at developer level. If he joins Infosys, we will fit him somewhere." @ Sas: Every now and then Narayan Murthy gives statement about rectifying Infosys culture. (http://profit.ndtv.com/news/corporates/article-what-narayana-murthy-told-infosys-investors-after-8-years-325670). You are either part of their current malpractises or suffering from Stockholm syndrome. For all their unethical practises Infosys HR has some justifications. Infosys employees have attitude "This happens every where, everybody does it." Reply
Aug 16, 2013 4:52 PM Sas Sas  says: in response to Ex Infosys Out of USA now
Let me respond to your statements. If really you were an interviewer and your recommendations were overruled by biased second round panelists, it was your responsibility to bring it to management/HR's attention. By remaining silent you have aptly demostrated how firm your principles are. And congratulations for grabbing the employment with Infosys without even being asked even one technical (or functional?) question. May be you are Rohan or Akshata's buddy? I have no skin in the game of saving Infosys - I left the company four yrs back and have already encashed the ESOPs when I decided to prepay my hefty mortgage! Reply
Aug 17, 2013 12:27 PM Ex Infosys Out of USA now Ex Infosys Out of USA now  says: in response to Sas
Well, I never claimed myself as man of principals. This is unnecessary finger pointing. I officially launched company with Infosys HR in USA for other issues which affected me . Nothing happnened ! Infosys HR has very irrational in addressing my concerns. I am not the only one who got recruited without proper technical round, there were many people like that. I know cases people where people couldn't clear technical interviews anywhere but got through in Infosys USA. It may be because Infosys has severe resource crunch, US visa were difficult to obtain. Few months back, till the time I was in USA anybody on H1 who appeared for the interview was cheated (if required) and recruited. You told in your last statement the reason for your pro Infosys mindset. Reply
Aug 18, 2013 12:53 PM Babu Bajrangi Babu Bajrangi  says: in response to Sas
LOL!..You must be out of your mind to write comment like that. Infosys gave you ESOPs but robbed away the character. Now they have somebody to bark on to whosoever talks about their unethical and wrong practises. What a loyalty? Now I understand why US It culture is going down and why there is growing anti-indian sentiments. Reply
Aug 19, 2013 4:36 AM Orb Orb  says: in response to Sas
It is interesting to note that you believe the words of an absolutely biased Indian press ("Court threw out the case") and do not believe the comments made by an anonymous writer, when in all likelihood the anon. writer is closer to truth than the Indian press. First let us debunk the myth and I am sure you have not read the decision, the case related to harassment and the judge had only this to say: "Since the laws of the land do not allow for a case to be filed under the stated circumstances, the court will not be able to allow the case to be heard". This is a far cry from how the Indian press has represented and made it sound like an Infy victory. Coming to the second part of your question, in India and abroad, Infy interviews are absolutely rubbish and your denying it won't change this fact. I, for one, was asked why I had cut my hair the way i did and that was the most serious they got in the entire interview. The point, Sas, is that the world knows what Infy is. It exists because the Indian Government cannot afford to let Infy die. They will beg, plead, and pray to the US government to let Infy off the hook. Reply
May 2, 2015 2:29 AM Erik Erik  says:
clearly the indian companies are part of the problem but most of us here are focussing only that part of the problem ignoring our large corporations pitching one indian company against other to bring down the cost forcing those companies to hire fresh graduates out from school and replace us. Are they better than experienced american folks? no and they are not even better than experienced indian folks who works from India. Its just the business model which require fresh graduates who are cheaper and willing to slog long hours. clearly this IT jobs are not for someone who wants 9 to 5 working hours be it either american or indian. Any wrongdoing can't go forever so Jack palmer issue happened for good to fix visa issue and there is one more dude filed a class action against wipro in east los angeles court which might fix the salary issue Reply

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