Offer withdrawn based on H-1B discrimination
My wife recently got an offer from a private financial management firm in New York which was withdrawn within an hour after she signed it. They had agreed to process her H-1 B VISA.
Timeline:
Friday around 1:30pm- She signed the offer letter and dropped off all required documents with HR.
Friday, around 2:30pm: HR called to say that the offer had been withdrawn. Their firm were not going to be able to fulfill her title and salary expectations and career objectives.
Friday around 3:30pm- The CFO called that they wanted somebody long term and felt that my wife's expectations were different.
Following Monday around 10:30am- Manager confirmed that indeed the offer had been rescinded. He said that the HR had viewed my wife as being demamding. The Manager said that my personality did not match. He said that my wife had been demanding in terms of salary while interviewing with the CFO earlier.
Unusual aspects:
1) The timing of the rescindment.
2) Inconsistent reasons - If they thought that she had been demanding a salary why did they make the offer in the first place? Moreover, she met them on 3 occasions before actually signing the letter which was plenty of time to find out about expectations.
3) Lost opportunities- They made a verbal offer and wanted her to get back within 2 days, saying they would write up the offer if my wife accepted. As a result of time-pressure she did not wait for 2 other jobs that were lined up and also cancelled another interview that was scheduled.
Can this be considered discrimination based on H-1B (they found out my wife's actual salary and did not want to pay what they promised) and can it be considered "pretext"?
Do you have suggestions for who my wife can consult with and how much it will cost? Thanks for your suggestions.
Answers (1)
I have no doubt that the employer decided not to hire your wife because she would be an H1-B visa employee. You might call that discrimination in a general sense, but it is not a form of discrimination that is illegal.
A lot of employers look at H1-B visa employees as a cheap way of getting workers. (The H1-B program allows U.S. employers to hire foreign workers in fields where workers are in short supply to work in the U.S.) This should not be the case, because under the H1-B visa program, employees are supposed to get a rate of pay equivalent to American employees. The fact that H1-B employees often get substandard rates just demonstrates how little employers know about the program. That, or they believe they can get away with paying substandard wages to H1-B employees.
There is something else that many employers do not know about the H1-B program: When an employer hires an H1-B employee, the employer is promising to hire that employee for a fixed period of time, usually three years. The paperwork involved in hiring an H1-B employee creates an employment contract requiring an employer to make a relatively long term commitment.
In New York State, at least with respect to employment, this is unusual. Relatively few employees in New York have written employment agreements. Fewer still have commitments from employers to keep someone employed for a fixed period of time.
My bet is that a fair number of employers never read the paperwork involved in hiring an H1-B employee, probably thinking it will never be enforced if they breach their agreement. But every once in a while I have heard of an employer reading the paperwork, realizing they are making a long term commitment, and then refusing to sign-off on the agreement. My bet is that is what happen here with your wife. That is unfortunate for your wife, but it is probably not illegal.
The more likely sources of illegality in cases involving H1-B employees are the employers paying substandard wages, or failing to keep the promises they made in the paperwork. The broken promises often involve not paying the promised wages. I have one case where the employer failed to even pay the employee for most of two of three years of the agreements.
H1-B employees should realize that the paperwork creates rights that are enforceable under law. Both the INS and the courts will help these employees enforce those rights.
posted by David M. Lira | Aug 6, 2004 08:20 AM [EST]
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