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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