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MORE DEVELOPMENTS IN CALIFORNIA H-1B LAWSUIT
Two weeks ago we carried a story about a trial court in California voiding a provision in an H-1B worker’s contract with the agency that employed him.  The provision called for the payment of a $ 25,000 penalty fee if the employee chose to change jobs.  See http://www.visalaw.com/01apr1/3apr101.html.

Reaction to the story was substantial.  A number of workers contacted us, and a number of lawyers representing workers with similar contracts also contacted us.  We have also communicated with the attorney for both the plaintiff, Dipen Joshi and the defendant, Compubahn, Inc.  Shortly after the article was made available online, we received an email from Navneet Chugh, the attorney for Compubahn.  He asked us to remove the story, saying that we had misrepresented the court’s ruling.  Mr. Chugh was also concerned that people would think the ruling was from an appeals court.  Of course, in our story we did say that the ruling was being appealed.

Mr. Chugh also asked us to mention that other cases based on the same fact pattern have resulted in rulings for the employer.  This is correct, and indeed, it was because the ruling in favor of Dipen Joshi was so unusual that it was news.  Interestingly, Mr. Chugh asked us to point out that Mark Papuc, Dipen Joshi’s attorney, had spent 900 hours on the case and had not yet been paid. 

In fact, at that point there was a pending request for attorney fees and court costs, as we learned from speaking Mr. Papuc.  We communicated the substance of Mr. Chugh’s concerns to Mr. Papuc, who submitted them to the court to show that the case was a matter of substantial importance.  The trial court has now awarded Joshi court costs of $ 7,999 and attorney’s fees of $ 207,050.

This case is based on state law, and because it is a trial court decision, it is not binding on even other courts in California.  However, California is considered a bellwether state in legal matters.  Also, most states have laws that deal with issues such as the penalty fee in this case.  Liquidated damages clauses, whether in the contract of an immigrant or not, are frequently subject to litigation.