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Congressional Testimony

Senate Judiciary Committee
Senate Judiciary Committee
House Judiciary Committee
Status of Regulations Enforcing the American Competitiveness Workforce Improvement Act
May 25, 2000 House Judiciary Subcommitee on Immigration and Claims
Chairman, Lamar Smith; Ranking Member Sheila Jackson-Lee

Mr. SMITH. The gentleman from Michigan and Ranking Member of the Judiciary Committee has just arrived, and we appreciate his attendance as well.
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Any further opening statements? If not, we will go to the first panel.

Mr. CONYERS. Mr. Chairman, might I just briefly welcome the Coalition for Fair Employment in Silicon Valley, John Templeton and Kevin Hinkston. I will be looking forward to hearing their testimony, and I thank you for allowing me a few minutes before I go to another subcommittee hearing.

Mr. SMITH. Mr. Conyers, you are always welcome, and I concur with your comments about our witnesses as well.

Mr. SMITH. We will now go to our second panel, and let me introduce them as they come forward: John Templeton, co-convenor, Coalition for Fair Employment in Silicon Valley, accompanied by Kevin Hinkston, co-convenor, Coalition for Fair Employment in Silicon Valley.
We welcome you all and look forward to your testimony.

Mr. Templeton.

STATEMENT OF JOHN TEMPLETON, CO-CONVENOR, COALITION FOR FAIR EMPLOYMENT IN SILICON VALLEY

Mr. TEMPLETON. Chairman Smith and Ranking Member Jackson Lee, we appreciate the invitation to share our viewpoints on the topic of regulating protection for American workers through the American Competitiveness and Work Force Improvement Act. We also thank Representative Jackson Lee for her advocacy of provisions to require recruitment from a wide variety of educational institutions and through a wide array of media as part of H.R. 4200. It is our hope that the remainder of the committee and Congress will see the wisdom of creating more scientists and engineers like our presenters today.

I think in our previous testimony, it became very clear that the administration has failed in the regulations to even address the impact of the H–1B program on underrepresented minorities and other protected classes.
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So, this is a real issue that hopefully the subcommittee and the committee will get more answers on.

There are serious implications for the goal of increasing the supply of those groups in the professions of science and technology. We presented you a chart that is based on our report called the Silicon Ceiling, in which we got the EEO–1 forms of 253 high technology companies, and we found that from 1996 to 1997, that the employment of African Americans and Native Americans actually declined, and that on a percentage basis, the employment of Hispanics declined as well.

If you saw the news in the last day or so, you may have seen a report from the Educational Testing Service that shows for the next 20 years, that the proportion of blacks and Hispanics in American colleges will decline. So this is what we are talking about in terms of the impact of this program. And my colleague will help you understand that the basic premises behind the perceived needs for this program are actually part of why this program is so dangerous and so damaging to people.

We have an unparalleled opportunity to end income inequity, economic disparity in this country, and we are passing it by in the exact same way that we did at the beginning of the 1900’s when we could have brought people from the South into the industrial age much quicker than the 60 years that it took.

But one other thing that I want to point out about the chart is that right now, there are about 770,000 African Americans and Latinos who are working in some aspect of high technology. And that is figures that we got from Tim Consedine with the Bureau of Labor Statistics. Now, compare that with the 660,000 who are in the Armed Forces right now who come from those same schools that high-tech says cannot teach math and science, but when you compare it to Silicon Valley managers and professionals in 263 companies, fewer than 2,000 from each of those groups.
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So to put it in a deeper perspective, if you look at that 770,000 group of people, it might remind you of a number that you have recently heard from ITAA about needing 800,000 people to work in these industries. So it is our contention that there is a clear supply of underutilized workers who often are working for government agencies or working for universities and hospitals, running the computer systems, but they do not get the high-paying jobs with stock options and the advancement opportunities because—directly because of this program.

We started to look just at the issue of fair employment in high technology, and it did not take us long to intersect with the H1–B. And so we had an anecdotal reference from a person who said, I went to my boss and said, why aren’t you recruiting from historically black colleges and universities and black professional organizations? And the response was, well, the H1–B is easier, I need the body count. So after that we did a Freedom of Information Act request and got the entire list of labor condition applications for the Western United States. Out of that we selected 100 of the applications at random. Then we advertised those jobs through e-mail. We did not run ads in the paper or anything like that; we just posted it on several e-mail lists. We got a response from people.

So, for instance, a company like Netscape was applying for a network training instructor. So we had an African American woman who had a master’s degree in instructional technology from San Francisco State who responded to that job, and so we sent that information in to Netscape. They did not respond. In fact, for all of the 100 jobs that we sent in, and we sent in people who had at least 20 years or graduate degrees in those jobs, none of the companies responded. So that kind of gives you an idea of the impact of not having regulations and not really having enforcement.
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The person that we reference in our testimony, Mr. Lindsey Brown, one of the other issues that is very important is retaliation. This is a gentleman who worked with us for several months while he was still on the job. We advised him to go through the complaint procedures at his company. Finally, he went to the Department of Fair Employment and Housing, filed a complaint, and was fired the next day.

And so we understand your frustration about the regulations because it is the same frustration that people who complain have in dealing with the Labor Department and the EEOC.

We have taken the case of Mr. Brown, starting with the regional offices of the EEOC, and the OFCCP. We have taken it to the Director of the OFCCP. We have taken it to the Secretary of Labor. We have presented it directly to Gene Sperling himself at the White House, and the response was 2 weeks later they gave the company that dismissed him an award for dealing with the digital divide.

So if you cannot get an individual complaint processed, then it raises a question as to the adequacy of the regulations, because the premise for the H1–B has been speed. Companies—we have to do it quickly so that the companies do not lose market opportunities. What about Mr. Brown who got dismissed right before the IPO for the company? Lost $100,000 in options because of that. Lost the $70,000-a-year salary and has been unemployed since September. He needs speed as well.

Maria Flores, who has been through the EEOC for 2 years, and Larry Campbell from Oracle, they need speed as well. They are working as contract labor as opposed to having full-time jobs.
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So if you can process an LCA in 7 days, and have a fax-back procedure, then to have just completely interminable delays in dealing with processes completely throws worker protections completely out the window. I mean, the individual worker has absolutely no chance in this situation at all. And all the economic incentives are in favor of bringing in people from overseas.

And as you adequately pointed out, many of the people who come in get free education, all the way up through higher education level. Then they come to the United States and get paid. I mean, NSF is probably paying somewhere between 600 million and 700 million in tuition reimbursements to foreign students as part of the grants programs. So when you compare that to the limited amounts that are talked about in terms of the 80 million for scholarships, it is just so far out of whack that it just makes the average American citizen wonder what Congress was thinking about.

But I would like to have my colleague Kevin Hinkston, who was the U.S. Black Engineer of the Year last year, talk about the demand that he sees in terms of young people who want these jobs, how quickly it is for them to attain the skills necessary for those jobs; also some of the practices inside industry that are used to actually come up with the justification for these jobs.

[The prepared statement of Mr. Templeton follows:]

PREPARED STATEMENT OF JOHN TEMPLETON, CO-CONVENOR, COALITION FOR FAIR EMPLOYMENT IN SILICON VALLEY

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We appreciate the invitation to share our viewpoints on the topic of regulating protection for American workers through the American Competitiveness Workforce Improvement Act.

We also thank Rep. Jackson Lee for her advocacy of provisions to require recruitment from a wide variety of educational institutions and through a wide array of media as part of H.R. 4200. It is our hope that the remainder of the committee and Congress will see the wisdom of creating more scientists and engineers like our presenters today.

There are serious implications for the goal of increasing the supply of underrepresented protect ed classes in the professions of science and technology.

Without effective regulation, this goal is likely to be retarded. ACWIA’s hasty approval through a budget compromise caused us to wonder whether protections for American workers were clearly thought through. Several months earlier, the Coalition had asked Rep. Maxine Waters, D–CA and the Congressional Black Caucus why the Department of Labor had failed to enforce civil rights laws, executive orders and regulations in high technology.

As a result, we began the first of 17 meetings with officials of the Office of Federal Contract Compliance Programs, including with the director, The Honorable Shirley Wilcher, Esq. and the deputy director, Joseph Kennedy.

Our experience offers some lessons as you conduct oversight on how your laws are enforced and as you craft legislation.

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Imagine if you will a group of volunteer citizens performing the first benchmarking analysis of EEO–1 forms submitted by high technology companies, crunching more than 50,000 data fields; conducting opinion polling to assess the extent of workplace discrimination; inducing employees afraid of retribution to come forward to submit discrimination claims and presenting the results to the relevant law enforcement and regulatory officials. And being ignored.

Or put yourself in the shoes of Mr. Lindsay Brown, who had built a 20-year history in technology prior to contacting us in March 1999. We advised him to exhaust his company’s human resources procedures while we alerted federal officials that there might be a problem at his company. By July, he wrote us, ”I have been in this type of business, telecommunications, for over 20 years, have seen racism in Silicon Valley but never this bad. I have gotten to the end of my rope but I refuse to let them run me out.” Mr. Brown exercised his rights in September 1999 by hiring an attorney and filing a complaint with the California Department of Fair Employment and Housing. The next day, 3Com dismissed Mr. Brown. They didn’t even have the decency to tell him. He discovered his dismissal when his e-mail no longer worked and he went to technical support.

The absense of regulations under ACWIA and the recalcitrance of the Labor Department and Equal Employment Opportunity Commission to enforce such basic laws as the Civil Rights Act of 1964 undermines the foundation of immigration law. Economic incentives to employ foreign workers are so powerful in a global economy that individual workers have no opportunity to seek redress on their own.

Without an effective regulatory environment, the game takes a lop-sided tilt in favor of the employer and any legislation you create becomes suspect when viewed against the Constitutional protection for due process under law.
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The Ninth Circuit held in 1979 in Legal Aid Society of Alameda County vs. Brennan that agencies may not simply choose not to enforce regulations and laws because they might be unpopular. It also held that agencies may not use process to impede citizens from exercising their rights.

In our research, we learned that approximately 80 percent of Silicon Valley high tech firms had failed to file EEO–1 reports.

”Where an employer has a segregated labor force and uses recruitment methods which perpetuate it, it is fair to assume that he is aware of the consequences of his recruitment system. All employers required to file reports with the EEOC must be aware of the consequences of their recruitment system because they are required to state those consequences in numerical terms.”

(Rutgers Law Review, Vol. 22, No. 3, Spring 1968)

Through anecdotal reports, we were told that employers were consciously using the ACWIA’s provisions instead of seeking employees from protected classes.

In January 2000, we received through Freedom of Information Act, a CD–Rom with each ACWIA non-immigrant visa labor condition application in the western United States. We selected 100 at random, advertised the jobs through e-mail and then submitted applications to the applicant companies after changing addresses so that we would receive responses.

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Not one of the companies responded to the resumes.

To give a graphic example, the National Conference of Black Physics Students met at North Carolina A&T State University in March and the National Organization of Black Chemists and Chemical Engineers met in Miami in April. Most of the universities that recruited at these conferences for graduate students were historically black colleges and universities. The second most numerous category was the U.S. military.

Indispensibility is the most effective spur to non-discrimination. The ACWIA’s latitude to universities and government-sponsored research facilities to staff their research departments from overseas keeps those young people from achieving their full potential.

NSF is spending close to $1 billion for direct stipends and tuition reimbursements for foreign students, compared to $80 million in ACWIA scholarships.

But let’s go closer to home in Silicon Valley. For the past 10 years, the Bay Area Chapter of B DPA–Information Technology Thought Leaders has conducted a six-month programming class for high schools students in Oakland and, for the last two years, San Jose.

Students learn programming, web page design, corporate etiquette and project management. They learn Visual Basic and HTML. There is no prerequisite for computer experience. More than 400 students have completed these courses. At least 80 percent go on to higher education, particularly those who participate in the training for several years. One has achieved a Ph.D. in forensic science. Some have masters degrees in computer science.

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If youth see professionals that they can identify with, then the students readily take to technology. It’s just a matter of exposing them.

Dr. Philip Emeagwali has done a better job of exposing young people to science than anyone with his web site http://www.emeagwali.com which attracts 156,000 students per week.

He is recognized as one of the pioneers of the Internet for his world record-setting performance of the fastest computer program to that time in 1989. Emeagwali is the only individual winner of the IEEE Gordon Bell Prize because he used the NSFNet to deploy 56,000 individual processors to perform supercomputer calculations of oil field simulations. He is available to tell you about the depth of interest in scientific careers that he has observed among American young people.

ADDITIONAL STATEMENT OF DR. KEITH JACKSON, PHYSICIST

The Stanford Linear Accelerator Center (SLAC) which is managed for the Department of Energy does not have a single African-American physicist on its technical staff. This would not be so remarkable except for the fact that Stanford University has produced the largest number of African- Americans with Ph.D’s in physics.

The exclusion of universities and non-profit research laboratories from the fees associated with the use of the H1–B workers would provide a financial incentive for these taxpayer-supported institutions to recruit from overseas.

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There should be an examination of the impact of H1–B workers in government-supported research and development laboratories, particularly with regard to the inclusion of underrepresented protected classes. The fees generated by the ACWIA generated $80 million for scholarship, but government agencies spent close to $1 billion for tuition reimbursements and fellowships.

Compare this to the free higher education provided to students in most European nations. The graduate can then pursue graduate education in the United States in a scientific field and receive tuition, fees and living expenses from the federal grant that his or her thesis advisor has received.

After completing your Ph.D with this subsidy, you can then be hired by a company who applies for an H1–B visa.

By comparison, the American student, particularly from underrepresented protected classes, must assume a debt approaching $50,000 beginning as an undergraduate. The combination of the end of affirmative action programs and the emphasis on loans instead of grants means that the American student must often work one or more jobs while studying.

The National Action Council for Minorities in Engineering has learned that two-thirds of the underrepresented minority students in engineering drop out of school because of the lack of financial aid.

You might have seen the section on young entrepreneurs in the Monday Wall Street Journal. The African-American entrepreneur on the last page had to start in community college, work and then get to a four-year institution for a bachelor’s degree.
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Yet, students from abroad mentioned earlier in the section were able to go all the way to their terminal degree receiving a powerful boost into entrepreneurship.

The disincentives that Congress has created make it very difficult for young people energized by role models like Dr. Philip Emeagwali to pursue their dreams to become scientists.

The regulation of ACWIA must look carefully at federal agencies, universities and government-sponsored research institutions to correct these imbalances.

IN CONCLUSION

The demand from the H1–B program arises from the growth of practices that were found illegal by the Griggs vs. Duke Power and other precedents 30 years ago. The use of qualifications that bear no relationship to work performance, subjective hiring criteria and discriminatory recruitment practices lead to a tiny proportion of applicants being interviewed or hired.

Regulations must root out those practices to give American workers a fair shot.

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