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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19778
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have been passed over promotion due to an H1B worker that

Customer Question

I have been passed over for a promotion due to an H1B worker that has been hired highly illegally and very fraudulently. The employer changed the job title and job description to justify the need for a skilled worker. This is only a payroll position and does not need a highly skilled worker and never has in the past. They also just hired someone for this position from within the company 2 months prior to the H1B worker but she decided not to take the position because something else became available, she only has an AA in English. I have the first LCA application and the doctored one as well, as well as, the first and second job posting. Also, they did not post it in 2 conspicuous areas as directed to, they would not even give me a chance at the job and I have a Bachelor degree in Business and Finance. I was not even offered an interview. The person hiring said to the H1B worker they were glad to have someone who has no reason to hurry home "meaning she is single and does not have anyone at home". I feel discriminated against for being married and also for being over 40. I am 54 and both people who were hired for this position are both under 40. I completed my payroll management course recently and they knew I was working on that on my own. I currently work as an assistant for Human Resource and Payroll. The HR manager told me he thought I was totally capable of doing the job and so did our finance manager but the Controller wanted to hire the H1 B worker and they did it all very illegally. I have a lot of proof to back all this up as well. Do I have a case?
Submitted: 9 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 9 months ago.

Hello,

Thank you for the information and your question. With only the facts that you have presented, it would appear that you might very well have a legitimate claim of discrimination, although discrimination on the basis of family status is not unlawful in CA or under Federal law, so there would need to be evidence of age discrimination or even discrimination based on national origin (since this other worker if obviously not from U.S.). All that said, there is no way that we could say what the result of a complaint or suit would be since we don't have all of the facts, especially those from the employer's perspective.

The steps you will need to take if you want to pursue this is to first file a formal discrimination complaint with your HR, or EO, department if you haven't already done so. The employer must be given the opportunity to know of your issue and try to resolve it before your complaint is ripe for taking outside the Company. Then, if they cannot resolve the issue, you can file a complaint with the CA DFEH and/or the EEOC, and may want to sit down with a local employment law attorney with whom you can discuss all of the detailed facts of your case and decide together where you want to go from there.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

Customer: replied 9 months ago.
Regarding this portion of you answer "although discrimination on the basis of family status is not unlawful in CA or under Federal law" it really was not a case of family status but rather "marital status" I have no children at home and never need to leave work for any family emergencies. I am married and I have taken vacations but only when I have vacation time earned. They need someone who can ALWAYS be here on Monday's to do payroll. I have called in sick 1 time in 5 years and I am very dependable. As far as H1 B goes, they are supposed to try to fill the position with an equally qualified person before they can hire an H1 B worker and they falsified documents to make it appear as if she is the only one who can do the job. As far as age discrimination how do you prove that? They did hire 2 people for this position both under 40 but they are smart enough to know they cannot make comments on my age.
Expert:  Marsha411JD replied 9 months ago.

Thank you for your reply. I apologize for the miscommunication. Marital status is protected under CA law (but not Federal), so the rest of the answer as to your options is the same if you believe you are being targeted for this reason, although the complaint to the EEOC would be off of the table if marital status was your only basis for a discrimination complaint. Age discrimination claims are difficult to prove, especially at the Federal level because under Federal law, age (over 40) has to be the only reason for the difference in treatment. However, CA law is not quite as onerous and there could very well be a prima facie case for age discrimination if only workers under 40 were hired for the position or positions workers over 40 (including yourself) sought and were qualified for but never selected. The the Company has a chance to prove a legitimate non-discriminatory reason for the disparate treatment.

It isn't something that is settled easily and only the State and the courts can make the decision after weighing a lot of detailed evidence from both sides.

Expert:  Marsha411JD replied 9 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answer I provided to you on the 10th. For some reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit (paid by the Site) for our work, that the customer thinks have gone through. In your case I have not received your rating. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue,if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

Customer: replied 8 months ago.
You touched on the age and marital status discrimination a little bit but you did not say anything at all about being passed over for a promotion and my company illegally and fraudulently hiring an H1 B worker and not even giving me a shot at the job and no interview. I work in the Corporate office and have for 6 years, I have the appropriate degree and qualifications they were looking for and was not even interviewed. It is a very small office with only 11 employees. Why did you not touch on the H1 B hiring?
Expert:  Marsha411JD replied 8 months ago.

Hello again, I did address the issue of the potential hiring of a foreign national over a U.S. citizen in my initial answer. If you review my first response I mentioned, national origin as a possible basis for your discrimination complaint. Whether or not their hiring of the foreign worker is illegal under immigration laws though would have no bearing on your situation. In other words, you don't have standing to sue for them hiring in violation of immigration laws. Your standing is limited to any potential preference of an foreign worker over an equally qualified U.S. worker, and thus the national origin claim.

All that said, an employer does not have to hire from within or pick a U.S. worker over a foreign worker, if the foreign worker is more qualified. In other words, it would be just as unlawful for them to choose an American worker over a more qualified foreign worker as it is for them to pick a foreign worker over a more qualified American worker. Discrimination on the basis of national origin is unlawful no matter which direction it goes. But again, the employer can't exclude someone who has applied for a job on the basis I have mentioned, but also does not have to do a corporate search within the company before they hire someone else.