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Class Action Lawsuit may bring relief for IT
Workers
WashTech News ^ | 01/21/2004 | Jeff Nachtigal
Posted on 01/22/2004 7:18:13 AM PST by OneShotJohnny2000
Lawsuit may bring extended benefits for unemployed tech workers WashTech News
By Jeff Nachtigal
Lisa Pineau lost her position as a mainframe computer programmer when her company outsourced her job to Canada in October of 2002. Nine months later her Texas state unemployment benefits ran out, so she applied for certification for eligibility for extended federal benefits under the Trade Adjustment Assistance Reform Act (TAA). She was denied.
The federal Trade Adjustment Assistance program extends unemployment compensation for up to two years and offers training, job search, and health insurance coverage assistance to U.S. workers whose jobs have been outsourced to foreign competition, within specific guidelines.
But the ambiguity of those guidelines has left unemployed IT workers like Pineau frustrated with their inability to access a support system that would appear to be set up precisely for them.
With very few exceptions, IT workers have been denied certification for eligibility for TAA benefits. The U.S. Department of Labor doesn’t consider the software created by programmers to be an “article,” or tangible item, within the narrow guidelines of the Act.
Pineau is one of 16 named plaintiffs in a class action suit filed January 2, 2004 in the U.S. Court of International Trade that seeks to make software programmers whose jobs were outsourced eligible for TAA benefits.
“When they came up with NAFTA,” said Pineau, 46, who worked for Computer Horizons in Irving, Tex., for nine years, “they said ‘we’ll train you for new jobs, help you train for new work,’ but they’re not doing that. They keep saying we’ll get better jobs, but there aren’t any, and we can’t afford to get the training.”
This case is the first of its kind to argue the specific point that software programmers should be eligible based on the fact that they create a “tangible commodity.”
“What we’re arguing is that yes, software is an article,” said lead attorney Michael G. Smith.
“We’re really excited,” Smith said. “This is an issue that is ripe to be decided in favor of the programmers. If we get the result we think we should, I think they are terribly overdue.” Originally developed about 40 years ago to assist U.S. manufacturing workers who lost their jobs due to global trade expansion, the TAA pays benefits to workers whose jobs were outsourced to countries that have free trade agreements with the U.S. (India, the recipient of a majority of U.S. IT jobs, does not have a free trade agreement with the U.S., so the class action suit does not include workers whose jobs were outsourced to India).
The case The United States Court of International Trade determines whether workers are eligible for TAA benefits by establishing whether the firm where the employees work “create or manufacture a tangible commodity, or transform it into a new and different article.”
“The reason they were getting turned down is that the Department of Labor has been saying that these computer programmers do not produce an article,” said Smith, who before becoming a patent attorney spent 15 years as a programmer.
Smith believes the case is a strong one, based upon multiple rulings called the “new machine doctrine” in the Court of Appeals for the Federal Circuit. The rulings hold that by installing new software on a computer, it transforms the computer into a “new machine.”
By extension, software should be ruled an article, Smith says.
That point is critical to the case, because under TAA guidelines unemployed workers are eligible only if they created an article such as a new machine.
In many cases the Labor Department has ruled that software is a service, rather than an article that was produced.
The idea that software is a service is, “totally bogus,” according to Smith.
Smith says several software programmer groups have been granted TAA benefits by the Labor Department, including a group of Nintendo employees in Washington State. The rulings appear to contradict the department’s stance, he says, since there is little difference between a programmer who makes computer games and one that works on mainframe computers.
Smith said there should be a clear ruling on the TAA for all IT workers.
Class members With the number of U.S. workers involved in creating software, Smith says he believes the number of class members could easily reach into the thousands.
Eligible class members include software coders who lost their jobs to countries that are party to a free trade agreement with the United States. Such countries include Canada, Mexico, and countries under the Andean Trade Preference Act, the African Growth and Opportunity Act and the Caribbean Basin Economic Recovery Act.
The class also includes programmer support staff, database and network administrators, secretaries, and even janitors.
A favorable ruling would give a much needed-assist to IT workers hard-hit by outsourcing. It could also mean substantial retroactive payment of benefits to class members. The class does not, include managers or tech support personnel, such as a telephone tech support personnel. It also doesn’t include workers whose work was transferred to a worker in the U.S on a H-1B visa or a L-1 visa.
Smith estimated that one unemployed software programmer in California who was eligible for all the benefits – including unemployment compensation ($52,000), retraining benefits ($10,000), job search expenses and relocation expenses ($1,250 for each), and the 65 percent tax credit for health care expenses – could be due an amount of more than $40,000 under the TAA.
Judge Richard W. Goldberg of the U.S. Court of International Trade is slated to preside over the case. An initial ruling is expected by June, but Smith expects this case to extend through an appeals process in the Court of Appeals for the Federal Circuit before a final decision is made.
Class action plaintiff Jim Fusco of East Brunswick, N.J. worked for AT&T for 13 years before his job was outsourced to IBM. Fusco, now 50, transferred to IBM, but now IBM is outsourcing his job to India.
He was turned down for TAA benefits, but returned to school anyway for Web development training. Recently he found another job.
“The work I’m doing is not really related to what I did at IBM,” Fusco says. “But I feel fortunate to have it, or I would still be living off my savings. My motivation is to make a point that tech workers are entitled to same protections as any other workers.”
Jack Lake, 58, hasn’t been able to find a job since Computer Horizons outsourced his job. His unemployment compensation has run out, and he says he will have to live on his savings or his 401k plan.
“I’d love to take Web design and Java programming, but that’s expensive,” said Lake, who has 33 years of programming experience. “I need my money to pay my taxes. I know that if you can get on your resume anything with Internet, you have a lot better shot at a job.”
In Irving, Texas, the job market for computer programmers is so bad that 18-year veteran programmer Pineau and her husband are considering getting out of high-tech for good and buying a fast food franchise.
“It would be nice if we got money,” Pineau said, “but that’s not really why
I’m doing this. It’s more the principle of the thing, and to really get
publicity towards the whole offshoring issue.”
It's free to those who have no objection to perspiration.
Come on people. Learn a skill that some employer needs...then get a job!
Geez no wonder this person can't find a job. There is a wealth of stuff on
the Internet on Java programming that are just a Google search away. There are
free online tutorials galore, there are places like www.javaranch.com where you
can ask questions (and provide answers as well, and you can point that out to
perspective employers who can check it out for themselves).
"Underemployed???" You sound like Jethro wanting to be a "brain surgeon" or a
"double-naught spy"! I want to have "JOB X", but until someone comes and knocks
on my door and offers me "JOB X", I am underemployed! When did it become someone
else's task to get you the job you want???
I am in the Systems Consulting industry. We cannot find enough qualified people. We are hiring unqualified people and training them as fast as possible.
We do Plant Floor Manufacturing Execution Systems, Quality, Production
Management, Order Management, Efficiency Management, etc. We have frantic
meetings every week or so to try and figure out how we will staff all the work
we have coming in...
It sounds like the people who take the single best year of investment returns
they ever had, and extrapolate that return every year to predict when they will
be rich enough to retire...
Only some know that. This is why they have jobs and the ones holding out for their $100,000/year, 2 years out of college, jobs, don't.
Yes, I'm in a related field (engineering/computers). I do know.
True 'dat. I am employed for a high level of technical skill. Most of these
skills I picked up by learning them on my own, and only got to take formal
classes after I'd been working with them for a while.
read later...
My comments were nor (or should not have been) directed at you. My comments
concerned the "underemployed." A group that either doesn't exist or consists of
everyone...
Employer? What employer?
How right you are! How greedy of me to want a decent house to live in, and a
decent car to drive! I should be happy with the scraps that fall from my
master's table. I'm so enlightened now...Please, sir, may I have another?
Sort of like an ex-CEO applying for the janitor's job. Would the company really think that their money to train him to do the janitorial duties would be money well spent or would they think he will be gone as soon as something better comes along?
I've been on interviews in the past where the people said to me "What are you doing applying for this job? The design department is where you should be and there are no openings there."
Good luck finding something.
ABOUT FREAKING TIME!
Any suggestions? I'm relocating soon. Is Tennessee a right-to-work state?
Learn oracle. Learn .asp, C#, .net. Take classes and become an actuary and Learn Peoplesoft, or Business Objects. There is a huge demand for people with these skills.
There's still a need for COBOL/CICS jockies, too. A quick search on
Monster.com yields jobs in every fair sized city in every state.
It's free to those who have no objection to perspiration.
No kidding, got a pc? got some time? Since they aren't working you would think they'd be able to invest the time an d learn for themselves. The real question is why would this person want to learn these things? With the crash of the DotCom's the bottom fell out of the market for these skills. It'll be hard to find and keep a decent job with skills.
I was once in Electronics Engineering. Now I work IT. If anything happens to
my IT job I will likely try to become an electrician or plumber. Can't realy
outsourse those skills.
Hacking out code may be leaving the country...but know what code to hack out
is alive and well and paying better than ever...
Almost by definition, if a company is still using COBOL software, they have refuse to upgrade over the years and are using extremely obsolete programs.
Now that the Y2K alterations have been done to that obsolete software, why would this type of company hire anyone for additional development?
A Software Engineer that can translate between COBOL and C++, should have
been in demand for a long time.
Yeah, a few... :^)
Jobs 1 to 50 of 1575 Show Jobs Posted: Last 24 hoursLast 3 daysLast 7
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You got luggage?! I got a note on the kitchen table from my mother and the
section of the newspaper with apartment ads.
While I'll take someone with the exact experience I'm looking for, I prefer a
someone who can easily adapt to whatever experience I'll need next year and the
year after that!
In the words of the very first job I pulled up off the list:
US-MA-Quincy-Batch Cobol and IMS Developer :.
Status: Full Time, Temporary/Contract/Project Reference Code: JO127692
Shift: First Shift (Day)
Job Location: Quincy
Our client. located in Quincy, MA, is looking for strong batch COBOL, IMS developers to make enhancements to merchandising systems. Work is primarily coding with minimal analysis and will be for no longer than 3 months. Candidate should have DB2 experience. About Hudson Global Resources
Hudson Global Resources provides recruitment, outsourcing, human resources consulting and performance solutions on a global basis. Supporting a diverse range of skills and industry sectors, we help companies assess, recruit, and develop top talent.
We operate across the contract, permanent and consulting markets and cover multiple disciplines with specialist teams in Accounting & Finance; Engineering, Scientific & Operations; Healthcare; Human Resources; IT & Telecommunications; Performance & Learning; Legal; Sales & Marketing and more.
We are committed to the principles of diversity and equal opportunity. For more information, please visit http://us.hudsonresourcing.com
.................................................................................................................................................................... Contact Information :. Grant, KeBeth KeBeth.Grant@hhgroup.com
I guess a lot of companies are still running legacy systems which need changes per new business requirements.
If I were still a COBOL cowboy, I would take the COBOL job while taking
classes or hacking my way through VB.NET in 21 Days etc. books at night.
That way I could offer to modernize the company's system down the road, even
have some of it compiled - to demonstrate it's advantages - earn the
contract.
I wouldn't call it a myth. The guy who lives next door to me who was an
engineer for 20 years and after being laid off two years ago is running a tool
room at a car dealership for $8/hour might dispute that as well. The notion of
permanent underemployment might be a myth, but it can certainly happen for a few
months or years in a row.
Companies will still pay for a Computer Operator?
You mean that a company will pay me because of my knowledge of how to use e-mail or browse a website such as FreeRepublic?
BS!
These are fake jobs, or would only pay minimum-wage
Yes.
You mean that a company will pay me because of my knowledge of how to use e-mail or browse a website such as FreeRepublic?
No. A company will pay you to swap tapes and report errors to more knowledgeable people.
However, I would fire someone browsing FreeRepublic on my dime. It's my company, I can do it, but not you. If you wan't to goof off, start your own company.
BS! These are fake jobs, or would only pay minimum-wage
They are real jobs and many pay above minimum wage. Look for yourself instead of sitting around on your ass complaining.
US-IL-Chicago-Computer Operator
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