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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.


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