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gc4me 04-23-2008 03:50 PM

This guy is a deshi employer. He is on H1 so he is a silent partner & that why scratching his head.

There are attorneys who will charge only after recovering money. The stupid employer can be sued for lost wages along with civil penalties from which the attorney's fee will be paid.

Quote:

Originally Posted by aquarianf (Post 242079)
I just read first page of this thread and would advice that don't follow most of reply because they are lawyers or they have not gone through the experience you are going through. $4000 may not be big amount compared to hassle of law suite , piece of mind or the amount of increase you may have received by switching employer. I know a close person who had gone through exactly same situation in NJ and had to pay 12,000 to settle the case. I have seen bunch of people in same situation and my friend always adviced them to stay away from law suite. If your current employer is not big then there are greater chances that it will turn away from you in case of law suite.

If you are not working with same client that you were working when you were in company A then non-compete may not hold against you.

Also can you get in writing from you current employer that they will support you in case of law suite?


vinabath 04-23-2008 04:34 PM

wow
 
any one who tells to be cautious is a desi employer or a silent partner. Any one wonder to ask the thread starter

why in the beginning he chose a desi employer and signed a non-compete clause?
why did not get his H-1 done with PF?

every one( desi employer and h-1b employee) have weaknesses and strong points.

H-1B program is the nastiest and problematic for employer and also for the employee. There is a reason lot of american born owned consulting business dont do H-1s. Big over head on the employer. Accounting complexity and hard to follow H-1b and dol rules.

I am not even talking immigration process and family problems H-1bs go through. Desi employers take the risk of doing h-1s and and 90% of them dont even grow beyond 50 people and there is constant battle of retaining H-1 b employees at the same time making profit.

I thought of starting a desi consulting firm and realised it is a lot of pain.

Desi employee

1. wants 80% and may be 90%
2. bare h-1 cost
3. bare gc cost
4. bare insurance cost
5. pay salary on time
6. pay umemp, ss taxes

in addition to the time employer has to spend time to do all the above tasks.

end of the day its not even worth running desi consulting business unless we make atleast 15-20% of the revenue.

end of the day....desi employers have to face the brunt of american born workers and dol that desi employers run poor hiring practices and poor EEO practices and not only that desi employers run down the billing rates.

it is a vicious cycle. desi employees want to work for low billing rates because of their necessity and in turn run down profits of the employers this in turn make both the employee and employer unhappy.

how can a guy with 5 years experience in SAP is ready to work for 60$? LOL.

every knows how the game is played.

another important point employees want the employer run the payroll while they are on bench so that their H-1B status does not mess up. How can an employer run payroll when the employer makes 5-7% profit? LOL.

another one..... employee wants 80% but cannot wait until the client he is working for pays for his services to the employer. employee wants that 80% percent on time. LOL

another one h-1b employees want to cut lines to gc faster. they are ready pay large sums to money to employer to buy earlier PD.

I was H-1b 3 weeks ago. I stayed with my employer for 6 years and still working. and I also know h-1 b is a really bad visa for an employee too.

Ideally USA should give work visas based on individual's merit like an OPT/EAD for 6 years instead of H-1.

aquarianf 04-23-2008 04:39 PM

For NKR and gc4me
 
Quote:

Originally Posted by gc4me (Post 242146)
This guy is a deshi employer. He is on H1 so he is a silent partner & that why scratching his head.

There are attorneys who will charge only after recovering money. The stupid employer can be sued for lost wages along with civil penalties from which the attorney's fee will be paid.


You can view my past posts in IV, I am not Desi employer but I may become very soon to employ myself (very close to get GC :-) )

Anyway have you gone through yourself with same situation/tension as OP going through or do you know someone closely who have gone through? Have you dealt with attorney yourself?


If that employer sue you, definitely you can counter sue for violation of wage related or h1b related rules and attorney will be the best person to advice you on that. make sure you go to an attorney who practice employement laws and have knowledge or have some other attorney in the same firm who deals in immi related matter. But question is, do you want to go through nightmare of law suites or you just want peace of mind.

surabhi 04-23-2008 04:50 PM

Both parties ( employee and employers) bend letter and spirit of law. Think fake resumes, references, experiences on employee side. Think no salary on bench, lack minimum professional decorum, professional ethics on employers side. But overall my sympathies are with employee and more so in this case.

In > 90% of cases I have seen, Desi employers dont operate on good faith. A good example is punitive damages. The employer does h1B, incurs about 5K cost and expects the employee to serve out 12 months. The exit clause is 25K. Its downright silly and precisely what causes employee anxiety. Instead if it is prorated for stay, it would be fair for every one involved.
Hoarding I-140, labor certificatio etc and giving no visibility is another deal breaker.I just dont get it.

Some one commented its a small world, apologize if necessary blah blah. If, for a minute the employer in this case thinks in positive way, ( My former employee would be at this place, couuld be in a position where I can sell more, i could get referral for new employees) he wouldnt be doing something like this which downright irresponsible and can cause significant damage to his shareholders. Being a small world goes on both sides.

For a techie, clilent is king. I would never displease the ultimate beneficiary of my services. Even after my project is over, I keep in touch, do occasional free consulting all in hope of building my network. But for employers like these, who add no value, i have no sympathies.

surabhi 04-23-2008 05:30 PM

Quote:

Originally Posted by aquarianf (Post 242164)
You can view my past posts in IV, I am not Desi employer but I may become very soon to employ myself (very close to get GC :-) )

This is not a personal advice but general appeal to all would be employers.

I hope you have researched and understood obligations of an employer.

By virtue of owning the business and taking 100% of returns, the employer has to assume 100% risk.

If not on revenue sharing with employee ( 80-20 etc) , the employer has no business of NOT paying on bench. Either the employee is on rolls or has to be advised to take LOA or let go.

For other unprofessional tactics, there is simply no excuse. Employment is at will. If employers cant deal with that, too bad. They should not be starting the business.

I have worked with Desi employers who have consistently run on best practices and completely adhering to law of the land. It can be done and the cost of doing that has to be factored into the business plan. If it is too costly as per your financial numbers, then you are not ready for it financially.

vinabath 04-23-2008 05:32 PM

my opinions in bold
Quote:

Originally Posted by surabhi (Post 242168)
Both parties ( employee and employers) bend letter and spirit of law. Think fake resumes, references, experiences on employee side. Think no salary on bench, lack minimum professional decorum, professional ethics on employers side. But overall my sympathies are with employee and more so in this case.

-- How can an employer pay salary on bench when employee wants to be an independent contractor(80%) on w-2

In > 90% of cases I have seen, Desi employers dont operate on good faith. A good example is punitive damages. The employer does h1B, incurs about 5K cost and expects the employee to serve out 12 months. The exit clause is 25K. Its downright silly and precisely what causes employee anxiety. Instead if it is prorated for stay, it would be fair for every one involved.

-- 25k because its just not about H-1b costs. Its business. Business needs to make profits and be healthy. Business dont want H-1B employees who would like to stay for less than an year. It affects other H-1B employees and their immigration process. Businesses hate to ask H-1Bs from INS and cancel H-1s. It puts a blotch on the Business. Afterall INS give H-1B approval hoping that the employee works with the employer for atleast 3 years .


Hoarding I-140, labor certificatio etc and giving no visibility is another deal breaker.I just dont get it.

you are right but this is also forced by H-1B employees.

Some one commented its a small world, apologize if necessary blah blah. If, for a minute the employer in this case thinks in positive way, ( My former employee would be at this place, couuld be in a position where I can sell more, i could get referral for new employees) he wouldnt be doing something like this which downright irresponsible and can cause significant damage to his shareholders. Being a small world goes on both sides.

Thats pretty optimistic and long term thinking.

For a techie, clilent is king. I would never displease the ultimate beneficiary of my services. Even after my project is over, I keep in touch, do occasional free consulting all in hope of building my network. But for employers like these, who add no value, i have no sympathies.


vinabath 04-23-2008 05:38 PM

Quote:

Originally Posted by surabhi (Post 242187)
This is not a personal advice but general appeal to all would be employers.

I hope you have researched and understood obligations of an employer.

By virtue of owning the business and taking 100% of returns, the employer has to assume 100% risk.

If not on revenue sharing with employee ( 80-20 etc) , the employer has no business of NOT paying on bench. Either the employee is on rolls or has to be advised to take LOA or let go.

For other unprofessional tactics, there is simply no excuse. Employment is at will. If employers cant deal with that, too bad. They should not be starting the business.

I have worked with Desi employers who have consistently run on best practices and completely adhering to law of the land. It can be done and the cost of doing that has to be factored into the business plan. If it is too costly as per your financial numbers, then you are not ready for it financially.

There is moral obligation too. Whenever you hire H-1s make sure most of them have dreams to get GC and settle down. Dont take risks in such a ways their dreams get shattered because of poor business practices. just to hire people dont run in your businesses on losses and in turn force yourself to shut down the business.

gcbikari 04-23-2008 06:06 PM

non-compete
 
Quote:

Originally Posted by NKR (Post 241723)
I understand if the companies want to protect their business. Let’s say that X works at a client place through a vendor. X’s employer has an agreement with the vendor which says that he cannot employ his employee, the vendor has an agreement with the client which says that they cannot take X through another vendor.

My question is there a validity period for these agreements beyond which it becomes invalid. A couple of years should be ok but it is frustrating to be bonded to some employer for years because one doesn’t have freedom to move around and be with the same client.


There is a time limit between X's employer and Vendor (they will renew the contract every year or so). But the problem is between X and his employer. As long as X is employed with his employer and usually 1 year there after (i.e. till one year) you can not work at same client performing same duties, this violates non-compete. If client agrees for vendor change, then employer cannot place you because of his agreement with vendor. If you are smart thinker and change both vendor and employer, then non-compete with employer will kick in.

munnu77 04-23-2008 06:08 PM

Quote:

Originally Posted by pointlesswait (Post 241345)
File a BBB case..but make sure you are absolutely sure Company is at fault...if its just money..
i guess u have to take a "hit".. but if they have violated ur rights in any way..u should pursue all possible options of getting justice.

is that a desi consultant!
I think we need to create a site of all desi consultants and rate them.. discretely.;-)

we already have one..
www.desicrunch.com

surabhi 04-23-2008 06:18 PM

Quote:

Originally Posted by vinabath (Post 242191)
There is moral obligation too. Whenever you hire H-1s make sure most of them have dreams to get GC and settle down. Dont take risks in such a ways their dreams get shattered because of poor business practices. just to hire people dont run in your businesses on losses and in turn force yourself to shut down the business.

I think there is difference of opinion here. Since there is chance here that the thread is frequented by current and would-be employers I will try to articulate once again.

1. H1B is a legitimate business expense. It should be factored in as such by the employers.

2. Same is case with GC. But given the fact tht after I-140 it becomes portable, it is perfectly ethical in my opinon to ask employee to put up the expense.

3. H1B or not, employment is at will in US. USICS granting 3 year H1B does not imply employee is bound for 3 years either in letter or spirit of law.

4. Unless the business produces IPR or the employee is in position to lure away exisitng clientele, non-compete doesnt hold water. Employers should refrain from using non-compete as scare tactic.

5. As a corollary to point #3, having term around employment in lieu of h1b processing is illegal. The point of lost business because of employee left doesnt hold good. Employers can only claim non-compete or non-solicitation if the case is geniune. Lost business because employee left will never be upheld.

6. Unless doing revenue sharing (80-20 etc), it is illegal to withold , not pay wages.

7. If employee requests running payroll while not on project in revenue sharing mode ( see #6 above) it should be on cost to employee including employer contribution of taxes. this is indeed a favor to employee.

8. If business needs to let go an employee and employee wants to continue for immigration reasons, it should be on cost to employee including employer contribution of taxes. this is indeed a favor to employee.

NKR 04-23-2008 07:20 PM

Quote:

Originally Posted by aquarianf (Post 242164)
You can view my past posts in IV, I am not Desi employer but I may become very soon to employ myself (very close to get GC :-) )

Anyway have you gone through yourself with same situation/tension as OP going through or do you know someone closely who have gone through? Have you dealt with attorney yourself?


If that employer sue you, definitely you can counter sue for violation of wage related or h1b related rules and attorney will be the best person to advice you on that. make sure you go to an attorney who practice employement laws and have knowledge or have some other attorney in the same firm who deals in immi related matter. But question is, do you want to go through nightmare of law suites or you just want peace of mind.

Your suggestion of talking to an attorney is well taken but not the advices. Thanks, good luck in your business

kshitijnt 04-23-2008 09:39 PM

One more
 
Guys one more perspective:

1) Employers are not in the business of litigations. Their business is to run the company. If you or the employers are talking lawsuits then one of you have crossed a red line. It is just that. No sensible person goes to the court knowing he has done wrong. I doubt an employer wants lawsuits. Just like you feel threatened by lawsuits, your employer also feels threatened by lawsuits.

2) Surabhi - nothing personal, but your post reflect how the ideal world should be. However world is not your way always.

3) I agree with acquarian, that it is very stressful if employer threatens to sue you. Also attorneys will charge you $200/ per hr. If someone is saying that attorneys recover money later etc, I say chill. Most attorneys would not do that. They like hourly rates. Its very difficuilt to find an attorney for free unless your case is slam dunk.

Why I suggested he apologize? Be humble. I did not say admit your mistake. I just said aplogize for employers grievance. If two simple words "I apologize" can get your job done, why waste time in attorneys court, etc?

Based on my past experience, I am telling you, you never know when you will need a past employer. You will not need your past client, I have been at atleast 10 client sites, I never needed a past client for something, but I always had to go back to my employers for something. They are like ex GFs or ex spouses and leaving a job is like divorce.

Where you will need your employer? When USCIS sends you an RFE to prove employment experience with XXX company. There is nothing in the law that forces employers to give you an experience letter unless he fired you. Now try getting a court order in 90 days to meet your RFE deadline

When you get a job in fortune 500 company or better opportunity after your GC, your future employer will want to talk to all employers in ur history. Ready for that? Want to give the number now or want to let the job go?

Thats why I am saying DO NOT fight with ex employers. You will get hurt more than the employer. Your ex boss is not a bad guy, he knows you are leaving for better opportunity. Since he remembers what you have done for him, a few kind words will solve the matter.

I needed one such reference in my past, I called and apologized to my former boss because if I didnt, he would not cooperate and nor I had time for years worth of lawsuits. It took about a month, but the matter was settled in my favour.

NKR 04-23-2008 10:26 PM

Quote:

Originally Posted by kshitijnt (Post 242261)
Guys one more perspective:

1) Employers are not in the business of litigations. Their business is to run the company. If you or the employers are talking lawsuits then one of you have crossed a red line. It is just that. No sensible person goes to the court knowing he has done wrong. I doubt an employer wants lawsuits. Just like you feel threatened by lawsuits, your employer also feels threatened by lawsuits.

2) Surabhi - nothing personal, but your post reflect how the ideal world should be. However world is not your way always.

3) I agree with acquarian, that it is very stressful if employer threatens to sue you. Also attorneys will charge you $200/ per hr. If someone is saying that attorneys recover money later etc, I say chill. Most attorneys would not do that. They like hourly rates. Its very difficuilt to find an attorney for free unless your case is slam dunk.

Why I suggested he apologize? Be humble. I did not say admit your mistake. I just said aplogize for employers grievance. If two simple words "I apologize" can get your job done, why waste time in attorneys court, etc?

Based on my past experience, I am telling you, you never know when you will need a past employer. You will not need your past client, I have been at atleast 10 client sites, I never needed a past client for something, but I always had to go back to my employers for something. They are like ex GFs or ex spouses and leaving a job is like divorce.

Where you will need your employer? When USCIS sends you an RFE to prove employment experience with XXX company. There is nothing in the law that forces employers to give you an experience letter unless he fired you. Now try getting a court order in 90 days to meet your RFE deadline

When you get a job in fortune 500 company or better opportunity after your GC, your future employer will want to talk to all employers in ur history. Ready for that? Want to give the number now or want to let the job go?

Thats why I am saying DO NOT fight with ex employers. You will get hurt more than the employer. Your ex boss is not a bad guy, he knows you are leaving for better opportunity. Since he remembers what you have done for him, a few kind words will solve the matter.

I needed one such reference in my past, I called and apologized to my former boss because if I didnt, he would not cooperate and nor I had time for years worth of lawsuits. It took about a month, but the matter was settled in my favour.

Tell me what wrong he did for him to apologize and I will apologize to you. When nothing is permanent he worked with them for 1 and half years, he got them 4 employees. Why in the world should he apologize?.

When you say that you will not need your clients you are wrong. when I was searching for projects I got a chance to apply to a job opening in one of my previous client, guess what, the start to my second stint was smooth just because I had a good rapport with my client and they liked my work. I even got one of my team mates in my client place to give me a referral for my higher studies.

"Your ex boss is not a bad guy, he knows you are leaving for better opportunity".He is not only a bad guy, he is evil IF (note the big IF) he is keeping the money which is not his. Their conscience should prick when they feed and give excellent education to their kids with the ill gotten money.


Unfortunately one might need his ex-employer in future (might not always be the case) and that is the irony of it all.

kg318 04-23-2008 11:00 PM

Quote:

Originally Posted by raj2007 (Post 242145)
Your case is not very clear..How can attroney can advice without reviewing the non-compete agreement?

Non-compete Agreements in New Jersey

Should you sign that non-compete agreement?

It has become fashionable for employers of all types and sizes to require their employees to sign non-compete agreements. These agreements range from very narrow to very broad in scope. A non-compete may bar you from working for a competitor, using or disclosing trade secrets or other confidential information, soliciting customers or recruiting the your employer’s customers. These restrictions generally last from a few months to a few years. Because signing such an agreement can severely restrict your future employment options, you (and your attorney) should review it closely before doing so.

Can you be fired for refusing to sign that non-compete agreement?

Yes, according to the Supreme Court of New Jersey. See Maw v. Advanced Clinical Communications, 179 N.J. 439 (2004).

Will a New Jersey court enforce your non-compete agreement?

Do not make the mistake of thinking that you can sign an agreement and ignore it later. New Jersey Courts routinely enforce non-compete agreements that are “reasonable” in scope. A non-compete agreement will generally be considered reasonable if it (1) protects the legitimate interests of the employer; (2) does not impose an undue hardship on the employee; and (3) is not injurious to the public.

What will happen if you have signed a non-compete agreement that is not “reasonable”?

If the geographic and temporal restrictions in your non-compete agreement exceed the boundaries necessary to protect your employer, a New Jersey court may modify the agreement by reducing those restrictions to make the agreement reasonable. See Solari Industries v. Malady, 55 N.J. 571 (1970).




Guyz, i met attorney. got copy of non compete agreement from a co-worker. I feel kind of releived after what he said.

As per him, every non-compete agreement that is signed cannot be neccessarily enforced in the court of law. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. If the agreement is ever challenged in court, the most important question, which will be posed from the Judge to the employer, is "What is the legitimate business purpose that is served by this non-compete agreement?"


Now as h1b employees, as every one knows we r not the key personnel in the company. we do not carry with us any trade secrets or confidential information which might harm their business.

AS per him the higher up the "food chain" an employee is at a company, the more willing courts are to enforce non-compete agreements. Upper level employees are typically exposed to more confidential, trade secret, strategic and other information that gives a company a competitive advantage in the market place. The lower down the food chain an employee is, the less likely a court is to enforce non-compete and non-solicitation terms.


Also non competes always have to give some profits to the employee, say a paid vacation, bonus or somethign like that. An employer cannot
just make the employee sign it to restrict him from making better living and not give anything in return....


Seems like these things are favourable to all the h1b employees.
If any employer is claiming non compete to hold the consultant to his company, then even he should not take employees from competetive companies..... But r they doing it???????? We all know the answer.... IT consulting businesses run like that.

raj2007 04-23-2008 11:09 PM

Quote:

Originally Posted by NKR (Post 242274)
Tell me what wrong he did for him to apologize and I will apologize to you. When nothing is permanent he worked with them for 1 and half years, he got them 4 employees. Why in the world should he apologize?.

When you say that you will not need your clients you are wrong. when I was searching for projects I got a chance to apply to a job opening in one of my previous client, guess what, the start to my second stint was smooth just because I had a good rapport with my client and they liked my work. I even got one of my team mates in my client place to give me a referral for my higher studies.

"Your ex boss is not a bad guy, he knows you are leaving for better opportunity".He is not only a bad guy, he is evil IF (note the big IF) he is keeping the money which is not his. Their conscience should prick when they feed and give excellent education to their kids with the ill gotten money.


Unfortunately one might need his ex-employer in future (might not always be the case) and that is the irony of it all.

I feel the same..you will always need the ex clients than ex employer.

Why you need the experience letter?
Appointment letter is good enough for green card purposes and as far as reference letter, I always got them from client.

There are 2 issues.
1. Getting back the salary
2. Non compete agreement.

Getting back salary is not a big deal. These type of cases never goes to the court and most o the employers will settle out of court.

regarding Non Compete, I feel you have served enough and there is no valid case.

surabhi 04-23-2008 11:18 PM

Quote:

Originally Posted by kshitijnt (Post 242261)
Guys one more perspective:
2) Surabhi - nothing personal, but your post reflect how the ideal world should be. However world is not your way always.

Its not ideal world. I have personally experienced both types of desi companies. Some one has commented about hardships of Desi employers that they cant scale beyond 50 employees, lot of competition etc.



The reason they cant scale is they cant think beyond immediate future. When I suggested your ex-employee could bring you business, it was termed as long term sort of non-practical thinking. No wonder why many desi employers are where they are.

Overwhelming majority of desi employers that remain in staffing business havent learnt anything about running business. They are middle men not adding value to employee or the client. They thrive on fear, anxiety in employees and scare tactics created by contracts that they know are unenforceable.

What they dont realize is it takes 1 disgruntled employee who has nothing to lose and is willing them to take to the cleaners.

kshitijnt 04-24-2008 01:46 AM

Yeah no problem. We all have egos. Dont apologize, instead spend money on court and attorneys.

I had an RFE from NSC that they wanted to see experience letter from employer from specific format. They specifically said in RFE that they didnt want to see affidavits or paystubs or offer letter or any other document. Remember EB2 category criterion is "5 years of progressive work experience" word progressive is important and offer letter doesnt prove it.

If you havent been in this situation, do not offer unnecessary advise based on your gut feeling.

kshitijnt 04-24-2008 01:51 AM

Quote:

Originally Posted by NKR (Post 242274)
Tell me what wrong he did for him to apologize and I will apologize to you. When nothing is permanent he worked with them for 1 and half years, he got them 4 employees. Why in the world should he apologize?.

When you say that you will not need your clients you are wrong. when I was searching for projects I got a chance to apply to a job opening in one of my previous client, guess what, the start to my second stint was smooth just because I had a good rapport with my client and they liked my work. I even got one of my team mates in my client place to give me a referral for my higher studies.

"Your ex boss is not a bad guy, he knows you are leaving for better opportunity".He is not only a bad guy, he is evil IF (note the big IF) he is keeping the money which is not his. Their conscience should prick when they feed and give excellent education to their kids with the ill gotten money.


Unfortunately one might need his ex-employer in future (might not always be the case) and that is the irony of it all.

What wrong he did? Nothing illegal but certainly not the best practise. Atleast he has been insensitive to his former employer.

NKR 04-24-2008 09:11 AM

Quote:

Originally Posted by kshitijnt (Post 242307)
What wrong he did? Nothing illegal but certainly not the best practise. Atleast he has been insensitive to his former employer.


You have got all things reversed.

Most of the H1B guys have families, they have kids that they need to support, most of them are single income families because of green card delays and we need money to visit our home countries atleast once every 3 years when each ticket cost 1.5K $ and this employer keeps 4k which is not his, so who is insensitive and whose practice is best?.

Most consulting companies run by desis who do not want the company to grow big. They want to keep it small by hiring a handful of H1B guys and keep sc****ng them..

It has to be a win-win situation for both, especially when the employee finds his own project and has been doing a bit for the company, this needs to be reciprocated. If someone opens a company he cannot expect somebody to be working for him for-ever. If the employee wants to leave him after a couple of years, making his exit difficult is unprofessional, unethical and downright cheap.

vinabath 04-24-2008 10:45 AM

Existence of Desi Employer
 
In ideal situation Desi employer should provide value rather than just scrape money as revenue sharing mechanism.

If a desi employer can go and get projects and becomes preferred vendor, he would not even do H-1s. He will use a Sub. Believe me H-1B visa is a pain in the ass even for the employer too.

There is a reason desi employers exist. both the desi employers and desi employees pick the best possible scenario/solution with respect to their situation.

kg318 04-24-2008 11:18 AM

Quote:

Originally Posted by kshitijnt (Post 242307)
What wrong he did? Nothing illegal but certainly not the best practise. Atleast he has been insensitive to his former employer.

what in the world makes this insensitive. h1b employees are not the bonding labours to the employers. If the employee leaves the company within 2 or 3 month after all the pain company had taken like spending for h1b filing training or providing placement, then that would be insensitive. After 2 yrs of serving, if the employee wants to look out for something better, employer shud make the exit smooter. And some else said earlier that its only employees who force employers for GC. i do not think so. If u see any advertisements posted by desi employers, the packages come along with GC process. they highlight GC point to attract the employees. yes it is true that most of the employees look out for GC for settlement. but that doesn't mean they force their employers who are not ready to do it. they might choose someone who offered GC process as a part of the package they r offered in the first. in such cases the chances of employers who do not offer GC process to get h1b's drop down drastically. thats the reason they offer GC.
Also GC makes long term commitment between an employer and an employee.
Everyone knows how long GC process is gonna take. So for all the yrs h1b's r holded to their employers, which is definetly making the employers business lot more easier. so why in the world an employer especially desi's wouldn't want to file GC?????

obviously 04-24-2008 11:53 AM

Time to Grow Up!
 
Folks, it is time for the H1B community to grow up. Business is business. I am not a blood sucking deshi firm, or a silent partner. On the contrary, I happen to be a trained mediator, published author on conflict management and professional in strategy/organizations. My view is pretty simple: mathematical 'tit for tat' doesnt take you far. Build, nourish and manage relationships. Money and math are secondary. Its time to grow up.

MR. Obviously
________
Live sex

gcbikari 04-24-2008 11:55 AM

Quote:

Originally Posted by kg318 (Post 242278)
Guyz, i met attorney. got copy of non compete agreement from a co-worker. I feel kind of releived after what he said.

As per him, every non-compete agreement that is signed cannot be neccessarily enforced in the court of law. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. If the agreement is ever challenged in court, the most important question, which will be posed from the Judge to the employer, is "What is the legitimate business purpose that is served by this non-compete agreement?"


Now as h1b employees, as every one knows we r not the key personnel in the company. we do not carry with us any trade secrets or confidential information which might harm their business.

AS per him the higher up the "food chain" an employee is at a company, the more willing courts are to enforce non-compete agreements. Upper level employees are typically exposed to more confidential, trade secret, strategic and other information that gives a company a competitive advantage in the market place. The lower down the food chain an employee is, the less likely a court is to enforce non-compete and non-solicitation terms.


Also non competes always have to give some profits to the employee, say a paid vacation, bonus or somethign like that. An employer cannot
just make the employee sign it to restrict him from making better living and not give anything in return....


Seems like these things are favourable to all the h1b employees.
If any employer is claiming non compete to hold the consultant to his company, then even he should not take employees from competetive companies..... But r they doing it???????? We all know the answer.... IT consulting businesses run like that.

Did you ask Attorney what happens if your employer still choose to Sue you? My friend's attorney told most of cases will be settled, but we might loose money up to 10K. Is it woth it doing? Also if we choose to fight, we might have to attend hearing (may be in different state based on your agreement). I am an employee too, and with you on this. I'd say if attorney guarentees he'll win our case we can go ahead.

aquarianf 04-24-2008 12:18 PM

Quote:

Originally Posted by kshitijnt (Post 242261)
Guys one more perspective:

1) Employers are not in the business of litigations. Their business is to run the company. If you or the employers are talking lawsuits then one of you have crossed a red line. It is just that. No sensible person goes to the court knowing he has done wrong. I doubt an employer wants lawsuits. Just like you feel threatened by lawsuits, your employer also feels threatened by lawsuits.

2) Surabhi - nothing personal, but your post reflect how the ideal world should be. However world is not your way always.

3) I agree with acquarian, that it is very stressful if employer threatens to sue you. Also attorneys will charge you $200/ per hr. If someone is saying that attorneys recover money later etc, I say chill. Most attorneys would not do that. They like hourly rates. Its very difficuilt to find an attorney for free unless your case is slam dunk.

Why I suggested he apologize? Be humble. I did not say admit your mistake. I just said aplogize for employers grievance. If two simple words "I apologize" can get your job done, why waste time in attorneys court, etc?

Based on my past experience, I am telling you, you never know when you will need a past employer. You will not need your past client, I have been at atleast 10 client sites, I never needed a past client for something, but I always had to go back to my employers for something. They are like ex GFs or ex spouses and leaving a job is like divorce.

Where you will need your employer? When USCIS sends you an RFE to prove employment experience with XXX company. There is nothing in the law that forces employers to give you an experience letter unless he fired you. Now try getting a court order in 90 days to meet your RFE deadline

When you get a job in fortune 500 company or better opportunity after your GC, your future employer will want to talk to all employers in ur history. Ready for that? Want to give the number now or want to let the job go?

Thats why I am saying DO NOT fight with ex employers. You will get hurt more than the employer. Your ex boss is not a bad guy, he knows you are leaving for better opportunity. Since he remembers what you have done for him, a few kind words will solve the matter.

I needed one such reference in my past, I called and apologized to my former boss because if I didnt, he would not cooperate and nor I had time for years worth of lawsuits. It took about a month, but the matter was settled in my favour.



I agree with kshitijnt that you need past employer more than you need client. In my case I had received 485 query to supply some my employment related docs ( whether that I am working with responser or working with someone else, letter from company showing my current position,sal. etc). Since I didn't change my employer, it was very easy and quick to get such documents from current employer. Imagine if I would have switched on EAD then I would have to chase my past employer for letters, paystubs etc and by the I would got them from past employer,I faced the risk of PD moving back.

gc4me 04-24-2008 12:29 PM

Another silent deshi employer here trying to scar H1s not to sue. I guess he created his ID (Join Date: Apr 2008) just for this.
Go and create another website in favour of deshi blood su&^%$rs called reverse-IV.org. Don't try to mock here.

Quote:

Originally Posted by gcbikari (Post 242385)
Did you ask Attorney what happens if your employer still choose to Sue you? My friend's attorney told most of cases will be settled, but we might loose money up to 10K. Is it woth it doing? Also if we choose to fight, we might have to attend hearing (may be in different state based on your agreement). I am an employee too, and with you on this. I'd say if attorney guarentees he'll win our case we can go ahead.


aquarianf 04-24-2008 12:29 PM

Quote:

Originally Posted by kg318 (Post 242278)
Guyz, i met attorney. got copy of non compete agreement from a co-worker. I feel kind of releived after what he said.

As per him, every non-compete agreement that is signed cannot be neccessarily enforced in the court of law. If the sole purpose is to avoid ordinary competition, it is unreasonable and unenforceable. If the agreement is ever challenged in court, the most important question, which will be posed from the Judge to the employer, is "What is the legitimate business purpose that is served by this non-compete agreement?"


Now as h1b employees, as every one knows we r not the key personnel in the company. we do not carry with us any trade secrets or confidential information which might harm their business.

AS per him the higher up the "food chain" an employee is at a company, the more willing courts are to enforce non-compete agreements. Upper level employees are typically exposed to more confidential, trade secret, strategic and other information that gives a company a competitive advantage in the market place. The lower down the food chain an employee is, the less likely a court is to enforce non-compete and non-solicitation terms.


Also non competes always have to give some profits to the employee, say a paid vacation, bonus or somethign like that. An employer cannot
just make the employee sign it to restrict him from making better living and not give anything in return....


Seems like these things are favourable to all the h1b employees.
If any employer is claiming non compete to hold the consultant to his company, then even he should not take employees from competetive companies..... But r they doing it???????? We all know the answer.... IT consulting businesses run like that.



can you ask the attorney if he can work on contingency basis? Or did he gave any estimate of how much it may cost you if you have to face lawsiute or if you have to go to settlement route?

gcbikari 04-24-2008 12:44 PM

Quote:

Originally Posted by gc4me (Post 242402)
Another silent deshi employer here trying to scar H1s not to sue. I guess he created his ID (Join Date: Apr 2008) just for this.
Go and create another website in favour of deshi blood su&^%$rs called reverse-IV.org. Don't try to mock here.

Oh Boy. What I wanted to know was if attorney is willing to work on contigency basis (couldn't get that word right), then we can risk. I wish I was a desi employer. I know in a chaos situation everyone is a suspect. I didn't give more accurate info in my profile because, i know some of my colleagues spy for my employer. I am in my 9th year on h1 and still struggling. though i said example of my friend, i personally paid 350 to a labor attorney last week to evaluate my non-compete. no matter who says what, i again repeat u either have to spend money and or loose job if you violate. ofcourse each case is different and has to be reviewed.

BTW I believe H1 issue and non-compete are different. I think (y)our desperate situation and anger on h1b process is leading to this reply. but non-compete comes under labor and employment.

NKR 04-24-2008 02:31 PM

Quote:

Originally Posted by obviously (Post 242410)
Folks, it is time for the H1B community to grow up. Business is business. I am not a blood sucking deshi firm, or a silent partner. On the contrary, I happen to be a trained mediator, published author on conflict management and professional in strategy/organizations. My view is pretty simple: mathematical 'tit for tat' doesnt take you far. Build, nourish and manage relationships. Money and math are secondary. Its time to grow up.

MR. Obviously

Quite right, I know you meant that managing relationships has to be from both the sides, but with most desi employers it has become a one way street. Even with all the effort to manage relationship, the employee still gets scr*** and this needs to stop.

vinabath 04-24-2008 02:50 PM

Quote:

Originally Posted by NKR (Post 242447)
Quite right, I know you meant that managing relationships has to be from both the sides, but with most desi employers it has become a one way street. Even with all the effort to manage relationship, the employee still gets scr*** and this needs to stop.

Do you have any suggestions?

NKR 04-24-2008 03:47 PM

Quote:

Originally Posted by vinabath (Post 242458)
Do you have any suggestions?

Yes I do.

If the employee needs to leave after two years and if he has had a good track record, relieve him in good terms, don’t scr** him.

If the employee helps in your business, you got to help him too (Just like the referral policy), don’t think that just because he works for you, he is obliged to help you in your business in other means, it is not in his list of roles and responsibilities.

It is the employer’s duty too to find projects, if the employee finds project for himself, then reward him with bonus.

Above all, the desi employers need to come out of cheap mentality and become more professionals.

Not that you care but I can give you more suggestions.

kg318 04-24-2008 05:15 PM

Quote:

Originally Posted by gc4me (Post 242402)
Another silent deshi employer here trying to scar H1s not to sue. I guess he created his ID (Join Date: Apr 2008) just for this.
Go and create another website in favour of deshi blood su&^%$rs called reverse-IV.org. Don't try to mock here.


i agree with u gc4me. he seems to be one among my employer's company. if u see, he has replied only for this post, nothing other than this post. except this issue, he doesn't seem to be interested in any other issues in this forum..earlier he said his friend paid $350 for evaluation of non compete and now he says he himself paid $350 to attorney. how can anyone be 9 yrs on
h1b. its only max of 6+ 7th yr extension. its not that i want to hear what i want to hear, but people come up here for genuine opinions of members here. so gcbikari(i doubt u r a desi emplyer), please dont use ur strategy of scaring the employees to death. that will spoil the whole essense of the forum.

raj2007 04-24-2008 06:16 PM

Quote:

Originally Posted by aquarianf (Post 242393)
I agree with kshitijnt that you need past employer more than you need client. In my case I had received 485 query to supply some my employment related docs ( whether that I am working with responser or working with someone else, letter from company showing my current position,sal. etc). Since I didn't change my employer, it was very easy and quick to get such documents from current employer. Imagine if I would have switched on EAD then I would have to chase my past employer for letters, paystubs etc and by the I would got them from past employer,I faced the risk of PD moving back.

Your case is different becasue you filed your I-485 with them. Here he has not started 485 at all.I don't know how he can maintain good relation with them. Some employer are too torugh to deal and same goes with some employees too.

kg318 04-24-2008 09:10 PM

[quote=gcbikari;242385]Did you ask Attorney what happens if your employer still choose to Sue you? My friend's attorney told most of cases will be settled, but we might loose money up to 10K. Is it woth it doing? Also if we choose to fight, we might have to attend hearing (may be in different state based on your agreement). I am an employee too, and with you on this. I'd say if attorney guarentees he'll win our case we can go ahead.[/QUOTE

as per the attorney, the case history of employers who won using non competes in the court are very rare unless the law suit is agiainst key personnel and court gets convinced by the legitemate business interest. If the employer still chooses to fight, he has got more to loose than me because of non payments of wages also being involved here. since non compete has been used just to escape the wages, courts wil be more hard on the employer and will consider it as threat rather than genuine.

Omm 04-24-2008 10:49 PM

Perfect Man
 
It high time that these guys get kicked on what ever, I have seen so many of my friends frustated due to non payment and get scarred to do anything against it..... I appreciate your courage , If they do bussiness and employ people they should legally pay, So many poeple come from India with kids and family and suffer so much when they are not getting paid on bench...I can only sympathise with their situation , Shame on such bussiness...BLOOD SUCKERS, MANIACS . I would say USCIS should create a law to punish these blood sucking monsters.
Training, H1b ...etc takes money ...so what he not stupid(desi employer) to do it for free , He makes altleast 10 times of what he spends in just 6 months when the candidate is on project.

I am sure I am going to get a lot of negative feedback for posting this in from ...so hiding desi employers

aquarianf 04-25-2008 11:27 AM

[quote=kg318;242627]
Quote:

Originally Posted by gcbikari (Post 242385)
Did you ask Attorney what happens if your employer still choose to Sue you? My friend's attorney told most of cases will be settled, but we might loose money up to 10K. Is it woth it doing? Also if we choose to fight, we might have to attend hearing (may be in different state based on your agreement). I am an employee too, and with you on this. I'd say if attorney guarentees he'll win our case we can go ahead.[/QUOTE

as per the attorney, the case history of employers who won using non competes in the court are very rare unless the law suit is agiainst key personnel and court gets convinced by the legitemate business interest. If the employer still chooses to fight, he has got more to loose than me because of non payments of wages also being involved here. since non compete has been used just to escape the wages, courts wil be more hard on the employer and will consider it as threat rather than genuine.

Did you contacted INS regarding this? Someone in my office told that one of his friend contacted INS regarding back wages. He received a phone call 3-4 months later from INS regarding his complain and was told that INS will investigate into the matter and if complain is valid then the former employer will be punished accordingly. He was told that INS has received many many such complaints and they have huge backlog and it is taking 3-4 months to reach to a complain but they are working on each of them.

aquarianf 04-25-2008 11:39 AM

Quote:

Originally Posted by Omm (Post 242653)
It high time that these guys get kicked on what ever, I have seen so many of my friends frustated due to non payment and get scarred to do anything against it..... I appreciate your courage , If they do bussiness and employ people they should legally pay, So many poeple come from India with kids and family and suffer so much when they are not getting paid on bench...I can only sympathise with their situation , Shame on such bussiness...BLOOD SUCKERS, MANIACS . I would say USCIS should create a law to punish these blood sucking monsters.
Training, H1b ...etc takes money ...so what he not stupid(desi employer) to do it for free , He makes altleast 10 times of what he spends in just 6 months when the candidate is on project.

I am sure I am going to get a lot of negative feedback for posting this in from ...so hiding desi employers

I agree with some of your points but you are not helping on anything here by appreciating OP's courage. If OP gets into law suite and if it requires lots of money would you be willing to donate some money to fight law suite because it will not only help OP but it will scare such shameless employer that there people out there in community who are willing to help if they do something wrong with employees.

I agree with you that such employer should be punished but it is more important to create awareness about their practice specially among people who just come from India and then get into trap of such employers. But many people do so even after knowing the facts about desi employers. Every thing has risks and rewards, and many people know risks but they get into it for rewards.

It seems that INS is very serious about holding back wages issue I think first thing people do is to file complaint with INS. See my previous post on this.

kg318 04-25-2008 11:44 AM

[quote=aquarianf;242737]
Quote:

Originally Posted by kg318 (Post 242627)

Did you contacted INS regarding this? Someone in my office told that one of his friend contacted INS regarding back wages. He received a phone call 3-4 months later from INS regarding his complain and was told that INS will investigate into the matter and if complain is valid then the former employer will be punished accordingly. He was told that INS has received many many such complaints and they have huge backlog and it is taking 3-4 months to reach to a complain but they are working on each of them.


the point here is not how long its gonna take. Its sure that they r gonna work if not immediately may be in 3-4 months. and once they see all the proofs(i do have proofs) whole company will be audited rock bottom, all the gc filing will be verified and single loophole is just enough to cause irriparable damage to the company. not only the reputation but i heard they will have a high penalty of 100's of thousands dollars. I have contacted one of the top lawfirms.for the matter of $4000 if the company chooses to do it, its their foolishness. also if they genuinely wanted to enforce non compete they wouldn't have used it as a threat agiainst payments they owe me.

Its not that I haven't made any efforts to reconcile with my ex-employer. I have tried and still trying to get them to have a civil conversation and settle this. But the more I try, i beleive, they r thinking the more scared i am and are being arrogant by not replying to any of my emails or phone calls. My reconciling efforts are giving them wrong hints i beleive. I am definetly stressed about this,thats true, but i am not scared because of all the info i gathered, I know even they do file a suit, I will be on the winning side. though i have option to go directly to DOL or USCIS and can show all the proofs i have regarding the deductions they have made, i haven't made till today just because of the kind of relationship we had earlier and also concerned about other h1bs who r with the company right now. I dont want their GC's to be in jeopardy. but if employer doesn't make the effort from his side, and pulls the thread till it breaks, i can't help it.

vinabath 04-25-2008 11:54 AM

good luck with your effort. I hope it resolves smoothly. I think the employer will budge once he sees the notice from the attorney.

sometimes the employer needs to be pushed too.

NKR 04-25-2008 12:16 PM

Quote:

Originally Posted by kg318 (Post 242747)
the point here is not how long its gonna take. Its sure that they r gonna work if not immediately may be in 3-4 months. and once they see all the proofs(i do have proofs) whole company will be audited rock bottom, all the gc filing will be verified and single loophole is just enough to cause irriparable damage to the company. not only the reputation but i heard they will have a high penalty of 100's of thousands dollars. I have contacted one of the top lawfirms.for the matter of $4000 if the company chooses to do it, its their foolishness. also if they genuinely wanted to enforce non compete they wouldn't have used it as a threat agiainst payments they owe me.

Its not that I haven't made any efforts to reconcile with my ex-employer. I have tried and still trying to get them to have a civil conversation and settle this. But the more I try, i beleive, they r thinking the more scared i am and are being arrogant by not replying to any of my emails or phone calls. My reconciling efforts are giving them wrong hints i beleive. I am definetly stressed about this,thats true, but i am not scared because of all the info i gathered, I know even they do file a suit, I will be on the winning side. though i have option to go directly to DOL or USCIS and can show all the proofs i have regarding the deductions they have made, i haven't made till today just because of the kind of relationship we had earlier and also concerned about other h1bs who r with the company right now. I dont want their GC's to be in jeopardy. but if employer doesn't make the effort from his side, and pulls the thread till it breaks, i can't help it.
.


Dude, I do not know who has given you red dot, you certainly deserve more green dots. I too think the same, if the company had to sue you for violating non-compete, they could have done it anytime, why are they threatening you when you ask for your salary. Either they do not have a non-compete agreement that they say you have signed (since you are not sure about it) or the non-compete has become invalid over a period of time or it does not hold water.

vinabath 04-25-2008 12:42 PM

Quote:

Originally Posted by NKR (Post 242756)
Dude, I do not know who has given you red dot, you certainly deserve more green dots.

LOL. You will shocked the abuses I got through red dots. Sometimes I feel this forum has bunch of angry or bitter people because of their experiences related to employment , immigration etc.


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