"Status of Regulations Enforcing the American Competitiveness Workforce Improvement Act (ACWIA)"
Hearing, Subcommittee on Immigration and Claims
House Judiciary Committee
9:30 a.m. May 25, 2000 Rayburn HOB 2226
Testimony, Coalition for Fair Employment in Silicon Valley
Co-convenors, Kevin Hinkston, Dr. Keith Jackson, John William Templeton
Resource expert: Dr. Philip Emeagwali
Chairman Smith, Ranking Member Jackson-Lee, Committee Members.
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.
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.
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.
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.
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.
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.
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.
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.
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.