rediff.com

NewsApp (Free)

Read news as it happens
Download NewsApp

Available on  

Rediff News  All News 
Rediff.com  » News » Exclusive! 'What did you achieve by making an example out of Devyani?'

Exclusive! 'What did you achieve by making an example out of Devyani?'

Last updated on: January 16, 2014 11:45 IST

'Let's talk a bit about minimum and overtime wages, since that is a topic so dear to everyone's heart. After all, critics say that heartless Devyani paid poor Sangeeta neither the minimum wages nor overtime wages and since "in this country we don't do it this way", she deserves to go to jail.'

'But the FLSA itself makes several occupations exempt from either payment of minimum wages or from overtime wages or both.'

'Disabled people need not be paid minimum wages under FLSA. Seamen on American vessels have to be paid minimum wages, but seamen on other than American vessels need not be.'

'So how fair is the Fair Labor Standards Act,' asks Sharmista Khobragade, Indian diplomat Devyani Khobragade's sister.

Ever since the US Department of Justice arrested Devyani on criminal complaints of visa fraud and false statements there has been much sound and fury. It has finally signified nothing as it has not resulted in the outcome that Devyani's wellwishers want, which is the dropping of false charges against her.

Since December 12, 2013, those of us who have tried to understand what is really going on and why the US is behaving as it is (as opposed to jumping to conclusions, making snap judgments and ranting about unrelated issues) have studied and learnt about many new things: The distinction between diplomatic immunity and consular immunity, definitions of strip search and cavity search, the Vienna Convention, DS-160, Wilberforce Act 2008 and FLSA.

FLSA or Fair Labor Standards Act has intrigued me a fair bit as this act is the psychological underpinning for the moral high ground taken by the American public. 'In this country we pay fair wages,' I can almost hear the smug statement made by the Americans. You actually hear the first part of that sentence very often in America -- 'In this country'; 'We don't do this in this country', or 'In this country we do it this way'. So I am interested in knowing if and how you pay fair wages 'in this country'.

Those who have bothered to read the 11-page complaint which was unsealed in a Manhattan court on December 12, 2013, would know that this complaint talks of a 'first' employment contract between Devyani and Sangeeta Richard. The terms and conditions of this 'first' contract draw from the FLSA.

According to the complaint, Devyani signed this 'first' contract only to help Sangeeta obtain an A3 visa so that Sangeeta could go to work for her in New York, but did not intend to honour it.

This, according to US laws, constitutes visa fraud.

The complaint goes on to state that Devyani instructed Sangeeta to repeat the terms of the 'first' contract (specifically related to salary) at her visa interview which led the US consular staff to approve her A3 visa.

This, according to the US laws, constitutes making a false statement.

Obviously, the employment contract is at the crux of the matter. What makes the employment contract so sacred to the US is that it contains in its terms what the FLSA says all employment contracts must: Minimum wages, overtime pay and record keeping, among other safeguards for employees.

So 'in this country', meaning the United States, an employer is supposed to pay minimum wages, supposed to pay overtime wages for any working hours over 40 per week and supposed to keep records on the hours worked and provide various other safeguards to protect the employee's interest.

And, of course, all employers in the United States pay minimum wages, pay overtime wages for any hours worked in excess of 40, keep records of the wages paid and hours worked, because 'that's how we do it in this country', right?

So why, in a 2013 study report tracking trends in civil settlements arising out of 'wage and hours cases' (where current and/or former employees allege unpaid work, including unpaid overtime, failure to provide rest breaks, and off-the-clock work as Sangeeta Richard has alleged), was it found that US employers paid $467 million in settlement in 2012 alone? And have paid a total of USD 2.7 billion in the period 2006-2012?

The above data refers only to situations where employees filed a civil law suit against the employer.

In the same period, the US department of labor reported 150,000 investigations, of which approximately 75 per cent resulted in a determination of a violation. And some of these employers paid a total of $1.63 billion in back wages and penalties.

These don't sound like a teeny, tiny number, do they?

Let us talk a bit about minimum and overtime wages, since that is a topic so dear to everyone's heart. After all, critics say that heartless Devyani paid poor Sangeeta neither the minimum wages nor overtime wages and since 'in this country we don't do it this way', she deserves to go to jail.

I categorically want to state that Devyani did pay the fair wages as prescribed by the FLSA. Now let’s talk about the rest of the United States.

The FLSA itself makes several occupations exempt from either payment of minimum wages or from overtime wages or both. See table below:

 

Exempt from Minimum wages

Exempt from Overtime wages

Babysitters on a casual basis

Babysitters on a casual basis

Companions for the elderly*

Companions for the elderly*

Federal criminal investigators

Federal criminal investigators

Home workers making wreaths

Home workers making wreaths

Newspaper delivery

Newspaper delivery

Newspaper employees of limited circulation newspapers

Newspaper employees of limited circulation newspapers

Seamen on other than American vessels

Seamen on other than American vessels

Switchboard operators

Switchboard operators

Workers with disabilities

Boat salespeople

Fishing

Buyers of agricultral products

 

Seamen on American vessels

 

Country elevator workers (rural)

 

Domestic employees who live-in

 

Farm implement salespeople

 

Firefighters working in small (less than 5 firefighters) public fire departments

 

Forestry employees of small (less than 9 employees) firms

 

Fruit & vegetable transportation employees

 

House parents in non-profit educational institutions

 

Livestock auction workers

 

Local delivery drivers and driver's helpers

 

Lumber operations employees of small (less than 9 employees) firms

 

Motion picture theater employees

 

Police officers working in small (less than 5 officers) public police departments

 

Radio station employees in small markets

 

Railroad employe

 

Sugar processing employees

 

Taxicab drivers

 

Television station employees in small markets

 

Truck and trailer salespeople

(Source: US department of labor Web site)

*As per a ruling by the DOL in September 2013, companions for elderly (a decent sized work force of nearly two million) will be entitled to minimum wages and overtime rates from 1 January 2015 (after a nice long window period).

It looks like a lot of people are actually not even legally entitled to minimum and/or overtime wages under the FLSA, are they?

Did you notice that disabled people need not be paid minimum wages under FLSA?

Or that seamen on American vessels have to be paid minimum wages but seamen on other than American vessels need not be?

So how fair is the Fair Labor Standards Act?

How strong is the underpinning of the high moral ground taken by the Americans? Is the pot calling the kettle black?

This is my question to the US department of In-justice: What did you hope to achieve by making an example out of Devyani?

Is your own track record in paying fair wages by your own citizens to your own citizens or to the countless illegal immigrants they employ so squeaky clean?

How about putting your own house in order before peeking inside the doors of foreign missions?

Words fail me at the hypocrisy. I can only come back to the same words I used on my Facebook post on Friday, December 13 when news of Devyani's arrest first broke out.

'Shame on the United States. Shame on the US government who thinks it is the lord and master of the universe and the "greatest nation on earth" -- one before which all others must prostrate so that it can walk all over them.'

Image: Dr Devyani Khobragade at the India Abroad Person of the Year event in June 2013. Photograph: Paresh Gandhi/Rediff.com.

Sharmista Khobragade