Sun's "Clerical Error"

Date: Thursday, October 10, 2002 10:22 AM

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Guy Santiglia is continuing to make it tough for Sun Microsystems to ignore
the law. He filed a complaint with the DOL that Sun Microsystems wasn't
posting it's LCAs in a public place as required by law. Most companies,
including Sun, intentionally hide their LCAs because they don't want their
employees to know how many H-1Bs they are hiring. In this case Sun got
caught and is given a warning by the DOL. Tino Serrano of the DOL seems to
be making excuses for Sun by calling Sun's deceptiveness a clerical error
but don't be fooled - this is a major defeat for Sun. They will now have to
publicly display their LCAs or face further penalties because the DOL will
nail them for intentionally breaking the law. Now the American workers that
are left at Sun will be able to see exactly what is going on.

The author of this article, Benjamin Pimentel, said that the Department of
Labor claims that "employers who hire foreign workers must prove that there
are no domestic workers who could fill their positions." I'm dismayed that
so many people at the DOL have such a poor understanding of the H-1B
regulations so let me say this again:
EMPLOYERS DON'T HAVE TO PROVE THAT DOMESTIC WORKERS AREN'T AVAILABLE AND
HAVEN'T SINCE ACWIA WAS PASSED IN 2000.

Pimentel stated: "But once the foreigners are hired, employers cannot choose
to dismiss them because of their immigration status." What that means in
practical terms is that employers can fire American workers and replace them
with H-1Bs whenever they want.

I was very amused by Sun spokeswoman Diane Carlini's statement that the DOL
has closed their investigation. Santiglia has no intention of letting Sun
off the hook so she had better think of something better for damage control.

Sun broke rules on hiring foreign workers
Labor Dept. won't punish firm for 'clerical' omission

Benjamin Pimentel, Chronicle Staff Writer Thursday, October 10, 2002

The U.S. Department of Labor has found that Sun Microsystems Inc. failed to
comply with a rule on posting notices about hiring foreign workers through
the H-1B visa program but that the Santa Clara firm did not break any laws.

The decision came in response to a complaint filed by former Sun employee
Guy Santiglia, who accused the tech giant of bias against U.S. citizens when
it laid off 3,900 workers late last year.

But while the Santa Clara firm neglected to display the required
announcements at company facilities in Sunnyvale and Austin, Texas, the
violation was not willful, the finding determined.

Sun has been ordered to post the notices, but no civil or other penalties
were imposed on the firm.

"We consider this a clerical error, rather than intentionally done," said
Labor Department spokesman Tino Serrano.

Sun spokeswoman Diane Carlini said the company has complied with the Labor
Department order.

"The investigation regarding Guy Santiglia's claims has been closed," she
said. "We are pleased this matter with the DOL has been resolved."

Santiglia, who was among the Sun employees dismissed last year, said he
plans to appeal.

"I'm not satisfied," he said. "I think the posting violation was more
widespread than those two locations. All my complaints were not addressed."

He said he has also filed a complaint with the U.S. Department of Justice.
The department could not be reached for comment.

Santiglia had argued that it was not necessary for Sun to apply for foreign
worker visas at a time when the company was firing thousands of workers.

Sun has said that it typically applies for the visas for current employees
whose work permits are expiring or for foreign staff who may be needed in
the future.

Less than 5 percent of Sun's workforce of 39,000 have temporary work visas,
Carlini said.

According to the Department of Labor, employers who hire foreign workers
must prove that there are no domestic workers who could fill their
positions.

But once the foreigners are hired, employers cannot choose to dismiss them
because of their immigration status.

Sun's stock rose about 20 cents to $2.67 per share at the end of regular
trading Wednesday.

E-mail Benjamin Pimentel at bpimentel@sfchronicle.com.

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