Class Action Case May Shed Light on a Dark Portion of the H-1B Program

By David North, December 7, 2012

A hearing in a Los Angeles federal courtroom that started this week may cast some light on two quite different, but related, immigration-policy matters:

  • A squalid program to exploit Filipino H-1B teachers and deny jobs to citizen teachers, run by a good-sized Louisiana school district; and
  • The potential utility of using a class action lawsuit to correct the resulting abuses.

The ingredients are a familiar social/legal stew: there is the penny-pinching employer, in this case the school system; a poverty-stricken and thus docile foreign workforce (the teachers); and several landsmen of the teachers, playing the role of the middlemen, all too ready to exploit their fellow Filipinos.

And then there is the federally administered H-1B program, for professional-level alien workers, prepared to facilitate many types of overseas hiring and often pretty oblivious of potential problems therein. The application of this foreign worker program to some public schools was described in an earlier CIS Backgrounder, "H-1B + K-12 = ?".

The specific Louisiana issue is not a new one, and was covered in some detail by both USA Today and in a blog of mine two years ago, but the matter is now in open court before a federal judge, and it is a class action proceeding. May it be covered by the local media!

The 350 teachers, mostly women, had been recruited in the Philippines by an organization called PARS International and run by Lourdes Navarro, who lives in Glendale, Calif. (which is why the case was filed in that state). The teachers had been forced by the middleman agency to pay illegal fees of as much as $16,000 to get the jobs. The school district — which has a population is excess of 400,000 — either knew about the shake-downs and ignored them or should have known about them, the teachers charge.

Now $16,000 is a large sum of money in the Philippines, and in many cases the would-be teachers went heavily in debt in order to meet the demands.

The defendants in this civil case include Ms. Navarro (previously convicted of defrauding California's Medi-Cal program of $1 million), some of her relatives, her firm, and the East Baton Rouge Parish School District and several of its officials. The teachers worked for that school district and several others in the state, but only East Baton Rouge is listed as a defendant.

The plaintiffs' lawyers are also charging that their clients were subject to human trafficking, an element usually not found in H-1B cases. My sense is that one of the attractions of this foreign workforce to their employers was their total lack of bargaining power; if one of these Filipina teachers were to be placed in an awkward classroom setting, she had no option but to tough it out. A citizen teacher in the same situation could look for work in some other school district. If the foreign teacher quit her job she would face possible deportation.

The decision to file a civil, class action suit against Ms. Navarro, her relatives, her firm, and the school district is an interesting one that has a variety of implications in terms of immigration policy. Class action suits are not routine in cases involving nonimmigrants. (I happen to have some background on the subject because both my step-daughter and her spouse are skilled class action lawyers in Denver, concentrating on Americans with Disabilities Act cases.)

The focus of class action suits is dual: There is an effort to secure monetary damages for the injured parties (in this case the school teachers) and to get the judge to issue a detailed order correcting the current abusive practices.

That's all very well, but the last class action suit in a foreign-worker matter that I followed closely, the one against sweatshop operators in the Commonwealth of the Northern Mariana Islands (just north of Guam) 15 years ago, sought only to improve wages and working conditions for foreign workers and did not lift a finger to push the employers to hire U.S. citizens.

Similarly, a class action case filed on behalf of disadvantaged teachers is unlikely to explore another negative aspect of the situation; many of the teachers so hired were for special education positions, meaning that the least advantaged of the system's children were most likely to be taught by teachers who did not have English as their first language.

With those caveats noted, however, a victory for the teachers would be a loss for the exploitative middlemen and will be costly to the employer — all of which will make that employer, and other school districts, think twice before using the H-1B program in the future.

The $4.2 million dollar bill run up by the Prince George's County (Md.) school board earlier this year for underpaying its H-1B teachers carried a similar message. In that instance, described in an earlier CIS blog the U.S. Labor Department, not a judge, lowered the boom.

My sense is that there is less use of the H-1B program by school districts now than in the recent past. To some extent that relates to enforcement actions and to some extent to the growing number of unemployed citizen teachers seeking those jobs.

The nonimmigrant Filipino teachers in this case have a powerful Washington, D.C., law firm on their side, Covington & Burling. Their efforts are also supported by the Southern Poverty Law Center (generally a high-immigration organization), by the American Federation of Teachers (AFL-CIO), and by a U.S.-based arm of the Labor Party of the Philippines (Partido ng Manggagawa), an interesting combination, and one not found routinely in battles regarding the rights of foreign workers.

The court case will probably drag on for a long time, but the teachers have already won the first round; that was the decision of the judge, never an easy one, that the plaintiffs could, in fact, be viewed as a class.

I am grateful to Ian Seruelo, the U.S. representative of the Filipino Labor Party, for informing me of the hearings.