Infosys' Attempt to Avoid Public Trial in Visa Fraud Case Likely Doomed

Don Tennant

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.

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Apr 13, 2011 8:32 AM POed Lib POed Lib  says:

Infosys and other serf-hirers are simply using the H-1B program to undercut the US labor market. I have hired some H-1Bs, mostly Chinese.  Never again, not under any circumstances. No creativity, no initiative, inability to think for themselves, micromanagement required at all times. They were all women, and to a person, as soon as they had a job, they had 2 kids, and then they would quit. I could set a calender on it. Americans hired at the same time were and are more creative, more able to take direction, more able to work independently, and mostly better programmers.

Apr 13, 2011 1:45 PM hoapres hoapres  says: in response to POed Lib

So what ??

This stuff has been going on for decades.  Infosys quite likely makes an offer so that the case never gets to trial.

Even if it gets to trial then does anyone believe that it is really going to change things ??

Be nice if things changed but that is not very likely.

Apr 13, 2011 2:14 PM A A  says:

Since you all are so outraged by the "evil" Indian "rapacious" corporations, I'd suggest you do some reading on the Bhopal Gas disaster (caused directly by an American company), the issue about pesticides found in Coke bottles in India, worms found in Cadbury bars and also a great deal of colonial history - the best book would be "Late Victorian holocausts, El nino famines and the making of the Third World" by Mike Davis.

Apr 13, 2011 2:29 PM Dolores Dolores  says: in response to A

Oh I suppose two wrongs make a right. That an ordinary American here should be punished because of something an overreaching corporation did? Yeah, go on and add to the suffering of the world. It will make you feel so much better and it will fix everything and bring all the Bhopal dead back to life. Go ahead and nurse your grievances. We aren't listening. We have a war to fight in the here and now.

Apr 13, 2011 3:10 PM Vincenzo Vincenzo  says: in response to A

@A - and your point is?

Apr 13, 2011 3:53 PM Dolores Dolores  says: in response to Vincenzo

They seem to feel that those of us who fight against labor arbitrage are welshing out on some deal that was made to them. I've seen this before. Supposedly, our big bad companies get to do whatever they want to over there, and in return people like A are supposed to be granted unrestricted access to our labor market and landmass. I know you don't remember making any such deal, and I know that I had no role in Bhopal, but remember USAID? How they were using taxpayer money to train foreigners to take work to be outsourced from Americans? My theory is that some bodies in our government or high level commerce have been making exactly these sorts of deals, or at least raising the expectations of foreigners by making big promises to foreign entities. And then along come you and I, and we are seen as backing out on the deal (that we never made). Too bad for A and his ilk. American workers weren't a part of any such deal and we are under no obligation to honor it.

Apr 13, 2011 5:03 PM Dolores Dolores  says:

People who defend global labor arbitrage are defending Infosys (and their ilk). People who celebrate the world being flat are opening the gates to Infosys. People who shout "shortage" and lobby Washington are really lobbying so that a bigger share of the pie will go to companies like Infosys. People who defend companies like Infosys are trying to roll back a century of American labor rights progress. This is not about finding third world talent and opening doors so that they can have a nice life like we have. This is not about sharing wealth with talented people, it's about taking ours away and pushing all workers down to the level of modern commodity trading.

Apr 14, 2011 2:10 PM C C  says: in response to A

Well, why talk of Bhopal ? The people of Bhopal were doubly wronged, the first time by a US company but the second time more tragically by the Indian politicians. Read http://bhopal.net/mir-zafar-citations/ on the second part.  These are the power elite which include Tata (scroll down the list) and Abhishek Singhvi, politican and lawyer who is Dow Chemical's counsel. All that is only peripherally relevant here.

Apr 14, 2011 5:40 PM USAid still using US taxpayer $$ to outsource US jobs USAid still using US taxpayer $$ to outsource US jobs  says: in response to Dolores

USAid is still playing the same games, partnering with greedy US corporations to create "education" programs to specifically outsource US jobs.  The game is the same, just the corporate project names differ.  These snakes need to stop taking taxpayer dollars to give to greedy H-1b and outsourcing companies. 

Its even worse than asking an American to train their individual H1 replacement.  Now USAid diverts millions of taxpayer dollars to programs that replace tens of thousands of Americans.   Look behind the code names for the programs, you will find the usual suspects - the top US tech H1b abusers.

Apr 18, 2011 9:19 AM Don Tennant Don Tennant  says: in response to Tech Freak

This case is far broader that the B-1 visa issue and has serious H-1B ramifications.

Apr 18, 2011 7:49 PM Tech Freak Tech Freak  says: in response to POed Lib

I thought the case above dealt with legal responsibilities of a B-1 Visa holder and not the often confused h1b.. Hence it would be good to not distract the audience

Apr 19, 2011 12:35 PM R. Lawson R. Lawson  says:

When you read the complaints it is really unsettling to think that we welcome foreign companies to our country, while they abuse our laws, mock our customs, and discriminate against our people.

Managers at Infosys remind me of how American businessmen in the 1950s are portrayed.  Anyone who refers to Indian-Americans as  'ABCD,' short for 'American-Born Confused Desi,' and 'IBCD,' short for 'Indian-Born Confused Desi,' does not deserve to set foot on our soil.  Clearly we are allowing people to enter our nation who are downright hostile towards what we stand for.  They shouldn't make the cut.

The problem is that the guest worker visa program doesn't even consider if the worker is anti-American.  Just that they have a sponsor; that sponsor doesn't even need to be an American corporation or an American citizen. 

Even if you support the H-1b program in principal, how could anyone support allowing our global competitors who are engaged in offshore outsourcing to use this program?  As Americans we should be in universal agreement that the H-1b program as well as other guest worker programs should not be used to send work overseas.  The goal should be to create a stronger nation, not a poorer one.

Apr 28, 2011 7:38 PM chris chris  says:

Tell Congress to Stop giving away american jobs

Sign the petition at change.org search for "stop giving away"



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