Being sued and not sure why....

scantey

Recently our Company was sold and although most of us were able to transfer over with the new company certain positions were eliminated (approx. 20%). I researched everything and hired an employment attorney to draw up the severance agreement which I thought was more than fair. Everyone was offered 1 week of severance for each year worked and an additional 4 weeks if they stayed on until the end of the year. Everyone turned their agreements in except for one employee who is here on a VISA. He hired an attorney the day he received notice and is now suing for discrimination. He is stating that because we "promised" him employment of three years that we are in violation and is requesting $250k... He makes $70k a year. Because we sponsered his VISA (which was a three year term) he is assuming that we can not lay him off no matter what- that is where he is getting his 3 year promise. It is his position that is being eliminated... I want to fight this for several reasons but our attorney is wanting to settle because of the court costs. Has anyone ever gone through this before- This was my first large layoff and I wanted it to go through without a hitch- The worst part is he is here until the end of the year as a favor to the employees- his position was already eliminated.

San Francisco

Well, I'm no lawyer, but it sounds like he is suing for breach of implied contract and this is where "at will" helps out. We do alot of settling too because of court cost, but we never do so immediately. If the suit is defensable, we (or our attorneys) basically tell the employee's attorney that the claim is so much bs and if it is, the settlement will be alot less than the initial demand - if we choose to settle rather than litigate. However, I realize you will have to go the way of your lawyer.

Elizabeth

gillian2

At will doesn't help out if there is an implied contract of employment, because an implied contract of employment is one of the exceptions in California. It all boils down to how the conversation went when he was hired - was it a promise of three years employment? and how easy is it to prove that a promise was made? If someone PROMISED three years of employment then the attorney is onto something when he/she recommends a settlement.

ritaanz

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Is this a H1B Visa? Sounds like it. The H1B is portable, meaning, he could leave your company at any time. If you terminate him, you are required to purchase him a one way airline ticket to his country. As stated in your post, the company sponsored him. The three year period is not a 3 year contract. It is the time period that the visa is valid. It can be renewed for an additional 3 years. It does not sound like his attorney has any experience in immigration law.

Don D

I agree with Ritaanz for the most part. I don't know whose attorney has what experience. But, I find it awfully hard to believe your attorney would recommend settlement right out of the chute. If you aren't bound to that attorney or he isn't 'in house' I recommend running this by another labor attorney with minimal contract experience, which any of them have. I've been involved in tons of H1B situations and have never known one to be considered implied contract. Only you would know if you implied to him that his period of employment would be three or more years. When a Visa is issued, there are no guarantees attached to it, nor are they generally attached to the sponsorship of a non-resident alien application. You didn't say what the settlement amount might be targeted at. If it's 250K, screw him. If it's more than $25k, screw him. H1Bs aren't necessarily 'portable', although the old INS/Justice/immigration trio turned a blind eye to these guys shopping their visas around. A good attorney can scare the hell out of this guy about his status and the likelihood of deportation. Offer to buy him a one way ticket home with $1500 airport souvenir-shop spending money. Secure his personnel and immigration file immediately.

gillian2

The issue isn't the H1B visa, it is what was promised the employee. Everything said about the visa is correct, however, the issue is an implied contract between the employer and the employee. In California an implied contract is just as valid a contract as any other - just a bit more difficult to prove. The allegation of a three year implied contract of employment is a different issue than the three year term of a visa - the agreement between immigration and the employee.

Don D

The supposition here Gillian2, at least on my part, is that the alien and his inexperienced attorney did in fact assume that the term of the VISA somehow converted to some sort of continuing attachment to the employer and the employment relationship. So, in that context, the H1B is indeed the issue, and will probably turn out to be the ONLY issue. All states and jurisdictions recognize implied contracts and verbal contracts as California does, so there's nothing really enlightening about California's approach to this situation. I think the poster will find out the indeed the alien and his attorney are trying to mix and mingle the two into a promise of employment. As far as what was 'promised' to the employee; nothing has been said about what was promised.

scottorr

I agree with Don and Ritaanz for the most part, my only concern would be how the offer letter was worded or if there were any verbal agreements. However from the information that is posted you should prevail in court.

gillian2

I would agree, except that it is the company attorney that wants to settle. The visa is NOT the critical issue, the "alleged" promise of employment is. If,in fact, this employee was promised three years of employment the possible outcome, lawsuit or settlement, is the same for this individual as it would be for an employee who isn't required to have such a visa.

Ethel

Don, you are my new hero!!!!! You don't (or maybe you do) know how many times I have wanted to say, NO SETTLEMENT!!!! (I really liked your way better -- "Screw you!!!!".) You brightened my day with your response -- Thank you!!

E Wart

I agree with Gillian, Don and Ritaan2. First, it sounds as if your attorney should find out exactly what they are "suing for" and also what they want (besides the $250,000.)
Also, sounds as if you need to do some heavy talking with folks in your office who dealt with this this person during the hiring process to determine if anyone verbally ever referred to any type of "promise for 3 years employment". Why is he suing for discrimnation? How has he been discriminated if the company was "sold" unless others in his dept were made job offers and he wasn't.
I honestly think you will find that this boils down to the visa issue. You do owe him a plane ticket home (but that should be all unless someone else said something.) It sounds as if this person has paniced (as many do when they learn they may have to go home and especially with the job market what it seems to be in CA.) (One option might be to help him find another job so he wont' be desperate and may be able to get on with his life.) By the way, the visa may not be portable. May depend and may be very hard to get a new one this late in year when all the "spots have been given out'.
I think that you might need an immigration attorney as well as your labor attorney to determine where you are and what you should do. I too don't think you owe anything, but don't know what he was told. I think you have a very bright, scared employee who wants to live and work in the US. (I have had to lay off someone with Visa and we were able to work this out very easily between the company and the employee.)
E Wart