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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 34462
Experience:  Retired (mostly)
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recently decided to switch jobs to a new company and submitted

Resolved Question:

recently decided to switch jobs to a new company and submitted all my documents for an H1 transfer. However i wanted to join the company only after my H1B approval was done. They wanted me on board immediately.So i suggested if they could do premium processing and even offered to pay for it. However they were nice and offered to pay it themselves.. But today in a phone interview with the HR and the company's attorney i was practically yelled at by the lawyer. He said some really strong words and that he was frustrated working with me and after that conversation i do not want to work or join them.

I was very excited to join them but a rocky start may not spell a good future for me there.
However had a few questions arising out of legal repercussions if i deny their offer:
a)Can they prosecute me? Or claim liquidated damages.
b) The offer letter clearly states at will employment and i don't find any clauses except arbitration and equitable relief.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  socrateaser replied 1 year ago.
a)Can they prosecute me? Or claim liquidated damages.

A: If you agreed to repay any signing bonus or training, unless you remained with the employer for some certain period of time, then you could be sued to recover that benefit. Other than that, the employer has no recourse, especially if your employer's legal counsel has treated you in the manner you describe -- because it's the employer's actions that are causing you to terminate the employment agreement.

If you want to try to salvage the relationship, you could write to the hiring manager and explain the situation and ask for assistance in resolving the matter. You would at least have a paper trail showing that you tried to work out your differences before quiting.

b) The offer letter clearly states at will employment and i don't find any clauses except arbitration and equitable relief.

A: If your offer letter states at will employment, then under Cal. Labor Code 2922, an employee or employee can terminate the employment relationship at any time, for any reason, or for no reason at all. So, the employer can't complaint that you changed your mind, because the law expressly permits you to do just that.

Hope this helps.

Customer: replied 1 year ago.

Dear Expert,


 


Thank you. Am really distressed with the whole experience and want to return back to my homeland :( . Request you to provide me a little more clarity. I haven't signed any training and am more than willing to return their sign on bonus and pay for the h1 fees till now (which is LCA + filing + my request for premium processing) .


 


they are nice on emails but this is the second time im being yelled at when i tried to make them understand that i was jittery about joining without an approved h1b.


a) Can i write an email which expresses sadness about the strong words used.


b) the equitable relief states thus. Can they use this to override the at will employment clause?


 


Arbitration and Equitable Relief. I agree that any dispute or controversy arising out of, relating to or concerning any interpretation, construction, performance or breach of this agreement, shall be settled by arbitration to be held in San Francisco County, California, in accordance with the employment dispute resolution rules then in effect of the American Arbitration Association. The Arbitrator may grant injunctions or other relief in such dispute of other controversy. The decision of the Arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the Arbitrator’s decision in any court having jurisdiction. The company and I shall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.
This arbitration clause constitutes a waiver of employee’s right to a jury trial and trial and relates to the resolution of all disputes relating to all aspects of the employer/employee relationship, including, but not limited to the following claims:
a. Any and all claims for wrongful discharge of employment; breach of contract, both express and implied; breach of the covenant of good faith and fair dealing, both express and implied; neglect or intentional infliction of emotional distress; negligent or intentional misrepresentation; neglect or intentional interference with contract or prospective economic advantage; and defamation;
b. Any and all claims for violation of any Federal, State or Municipal statue, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Age Discrimination In Employment Act of 1967, the Older Workers Benefit Protection Act, the California Fair Employment And Housing Act, the California Labor Code, et seq.;
c. Any and all claims arising out of any other laws and regulations relating to employment or employment discrimination.


 

Expert:  socrateaser replied 1 year ago.
a) Can i write an email which expresses sadness about the strong words used.

A: I don't see a problem with doing this -- as long as you don't state any facts in your letter. That is, if you say something like, "Your legal counsel said that I was an ungrateful jerk," and you can't prove that the attorney said this, then the attorney could sue you for defamation of character. Whereas if you simply say, "Your legal counsel made comments to me which in my opinion suggest that employment with your organization is not in my best interests."

In other words, you want anything you say to be your opinion of the circumstances, and not a statement of fact -- because opinion is not actionable in court, whereas alleged false statements of fact are actionable.

If you are in any way confused about whether or not you are engaging in defamation as opposed to stating an opinion, please consider having your letter read by a lawyer before you send it, so that you are protected.

b) the equitable relief states thus. Can they use this to override the at will employment clause?

A: No. Substantive California law cannot be overridden by an arbitration clause.

Hope this helps.
Expert:  socrateaser replied 1 year ago.
Is there anything else that I can clarify for you, or is my answer satisfactory?
Customer: replied 1 year ago.

One last thing left .Thank you. I would like you to review as your answers have been comforting for me. I would be willing to pay more for your expert advice and time.

 

This is the email i' m planning to write. Please let me know if this is ok. Can i also insist on them not to call me up but to communicate only over email.

Hi



As you very well know, we connected today on phone to address my concerns after your express request to talk to me yesterday. You put me in touch with the legal counsel of the company to allay any concerns. I would like to thank you for taking out time to do this on my behalf and also agreeing to pay for premium processing for me. As you might very well know, i have been very inclined to join RS from the day i started to interview.

However Your legal counsel made comments to me which in my opinion suggest that employment with your organization is not in my best interests. I would like to withdraw my candidature for this position.
I will not accept the bonus cheque given to me through DD for this process and would be willing to bear the cost of immigration expenses incurred by RS till this point.

My best wishes to the company for continued growth.

Thanks,

Customer: replied 1 year ago.

Dear Expert,


 


were you able to get my previous message. Looking for a reply from you end.


 


Thanks,


Rupa

Expert:  socrateaser replied 1 year ago.
You can require all communication view email or regular mail, but the employer can refuse. Regardless, you can refuse to take the employer's phone calls and thereby force other forms of communcation.

Re the letter, I see no problem. However, for your information, Under 8 U.S.C. 1182(n)(2)(C)(vi)(II), " It is a violation of this clause for an employer who has filed an application under this subsection to require an alien who is the subject of a petition filed under section 1184 (c)(1) of this title, for which a fee is imposed under section 1184 (c)(9) of this title, to reimburse, or otherwise compensate, the employer for part or all of the cost of such fee. It is a violation of this clause for such an employer otherwise to accept such reimbursement or compensation from such an alien."

In other words, the employer cannot accept your reimbursement for the application fees, nor require that you pay them.

Hope this helps.
socrateaser, Lawyer
Satisfied Customers: 34462
Experience: Retired (mostly)
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socrateaser
California Employment Lawyer
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Retired (mostly)