The DOL's response does not mean that there will not be an investigation of H-1B use at SCE or any other company. The 10 senators, in their initial letter, also asked the U.S. Department of Homeland Security, which oversees the immigration agency, and the U.S. Department of Justice, to look at the issue as well. There's been no word yet from those departments.
The DOL's position may be problematic for workers who say they have been displaced by temporary workers and would like a government review.
IT workers who are replaced often sign severance agreements that include restrictions about what they can do legally or say publicly, and these employees may believe they face legal risks from their former employers if they complain.
The interpretation by the DOL not to investigate SCE without a complaint was questioned by Daniel Costa, director of immigration law and policy research at the Economic Policy Institute. Costa said that under the law, the DOL does have the authority to investigate without a complaint.
Costa, citing from prior case law, said it is clear that federal agencies can start investigations on their own without private complaints.
But Costa also suggested an alternative path, and said the International Brotherhood of Electrical Workers (IBEW) union at SCE can file a formal complaint with the SCE and ask for an investigation because of the adverse effects suffered by fellow employees.
While the laid-off IT employees were not IBEW members, the union qualifies as an aggrieved party because their interest in keeping wages and working conditions from being degraded in the workplace were adversely affected by the replacement of their IT specialist colleagues with H-1B workers.
For its part, SCE has said, through a statement, that "most of the U.S.-based workers assigned by these vendors to the SCE contracts are permanent residents of either California or Ohio, and therefore are not working under H-1B visas."
But an SCE spokeswoman said the company would not provide any additional details about that statement or quantify it. Labor Condition Applications (LCA) filed for H-1B workers at SCE locations in Irwindale, Calif., where a major part of the SCE's IT operations are run, show at least 150 LCAs for Infosys workers alone, according to a random sample. It is also using workers from Tata Consultancy Services. Both firms are based in India.
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