In the Matter of: GUY SANTIGLIA, Complainant

vs.

SUN MICROSYSTEMS, INC., Respondent.

US Department of Labor, Office of Administrative Law Judges

Released: February 19, 2003

A disgruntled former employee, Guy Santiglia, of Sun Microsystems succeeded in convincing a US Department of Labor Administrative Law Judge that the company violated Labor Condition Application rules. But the victory was a hollow one since the judge in the case found that the violations were minor and unintentional and did not justify a fine. The company was only ordered to modify its LCA posting policies.

The company was accused of a number of violations, but only one violation was found. The judge found that Sun failed to post two copies of the LCAs at the specific work site where the H-1B workers would be working. The company posted one copy at its headquarters and another at the work site. The company was ordered to always post two copies of the LCA at the work site.

Other claims against Sun were denied.

Employers are required to maintain a public access file at its principal place o f business. The former employee claimed that Sun failed to make the LCA records available at the work site in Santa Clara, California. Sun maintained the records at its corporate headquarters in Newark, California. The Administrative Judge found in this case that Sun acted properly in maintaining the records in Newark.

Santiglia also argued that it was denied reasonable access to the files of Sun. He was required to make an appointment to see the files and was not permitted to see all of the boxes of files at one time. He was also requested to sign a log book before being given access to the files. The judge in this case found that none of these restrictions denied Santiglia access to the files.

Santiglia complained that he was not allowed to photocopy or photograph the files. He was permitted to take personal notes. The judge also found that this was not a violation of the LCA rules. The rules merely state that the files must be made available for public examination.

Santiglia complained that he was not provided access to the specific wages paid to specific workers. The judge found that while Sun must include documentation about the wage rate to be paid the H-1B worker in the public access file and must maintain specific payroll records and individual wage data, payroll records and wage data are not considered part of the public record and are only provided to the Department of Labor upon request.

Santiglia alleged that two H-1B workers were not being paid the prevailing wage. But the judge rejected the claim stating that Santiglia did not prove that the workers were, in fact, on H-1B visas.

Santiglia alleged that some of Sun's LCAs were invalid because the signatures on the documents were not the person stated. Instead, they were her assistant. The judge, however, found that this was permissible since the signature was authorized by Sun and the LCAs were personally reviewed by the person on whose behalf the document was signed.

Santiglia also complained that Sun made misrepresentations since it hired H-1B workers when other companies were laying off workers en masse. However, because Sun is not an H-1B dependent employer, it was, according to the judge, under no obligation to show that workers were not displaced.

Finally, Santiglia argued that two positions covered in the LCAs - IR System Technologist 1 and IR System Technology 2 do not meet the requirements for "specialty occupations." But the judge reminded Santiglia that the determination of whether a job is a specialty occupation is one left to the Immigration and Naturalization Service and not the Department of Labor.

Santiglia was represented in the case by Michael Hethmon, a staff lawyer for FAIR, an anti-immigrant organization. Sun was represented by Roxana Bacon, a lawyer in Phoenix, Arizona.