CNMI Department of Labor Actions Questioned

May 15, 2008

The CNMI Department of Labor released a mid-year report that outlines their new policies as I elaborated upon in a previous post. The report sent to the members of the 16th Legislature from Deputy Secretary of Labor Cinta Kaipat, is dated May 14, 2008.

The reports states new procedures for overstayer lists which will be produced each quarter:

"Permit holders who have expired permits and who have not left the Commonwealth and who have no application, case, or appeal pending in the department will be put on the overstayer list. The list will be published twice, once in each of the two successive weeks, to give persons on the list an opportunity to appear at the Department and correct the record if any error has been made. After the correction period expires, I will certify the list to the Division of immigration, and we expect vigorous enforcement efforts to follow."

This is amazing. The DOL can support "vigorous enforcement" to deport "overstaying" guest workers, but NO enforcement of administrative orders to ensure that employers pay the guest workers the money that they have determined is owed to them. I am assuming that the last employer of each guest worker on the overstayer list will be called upon to repatriate these workers. Some of these employers are the same poeple who owe the guest workers money, as has been determined at DOL hearings, and verified with DOL administrative orders.

Since DOL has stated that they are not a collection agency, and the department refuses to enforce their own administrative orders, this policy is deeply flawed. The CNMI DOL is stating that they support employers repatriating guest workers even if they are owed money. Once an administrative order is issued, DOL considers a labor case "settled". I would argue it is settled when the administrative order is fulfilled. The message DOL is sending is that employers can violate labor laws and not be held accountable. This policy encourages labor abuse since there is no consequence to employers for not paying the employees what is owed to them.

I am assuming that employees who have EEOC cases, NLRB cases, US Department of Labor cases, and cases in superior or federal courts will also be included on the overstayer list. This is an unconstitutional denial of due process.

The next category discussed is the report is bonding of employer obligations. Kaipat states that the DOL has not yet implemented provisions of PL 15-108 for bonding of employer obligations to pay wages and repatriate workers.

In regards to unpaid administrative orders Kaipat states:

"We have not been successful in reaching with the ombudsman a mutually satisfactory way of dealing with unpaid administrative orders. The ombudsman continues to refuse to provide the Department with the orders and sworn statements that he has collected from foreign workers. He insists that the Department do this work all over again. For that reason the Department will shortly implement its own program without participation by the ombudsman.

The Department changed its policies and practices with respect to collection of unpaid administrative orders. We believe we have a much more efficient and effective way to ensure that many administrative orders as possible are paid in full. Administrative orders will now contain directions to the parties as to the steps that are to be taken with respect to payment. If payment is not received on time, the party who is owed the money will be given a Small Claims Court Information Packet which gives detailed instructions and forms for filling with Superior Court to enforce the Department's administrative order. The court is in a much better position than the Department to secure payment. We have discussed this procedure with the court and the judge assigned to small claims is willing too take on this additional work. This will reduce the Department's costs and free its personnel for other work.

For over a decade I have have stated that the CNMI DOL does not enforce administrative orders. They are meaningless pieces of paper issued by DOL only to give them the ability to declare that a case is closed. The department could care less whether a violating employer is held accountable, and pays an employee what he or she is owed. I have stated this assertion in testimony submitted to the US House and Senate.

The Department of Labor has demonstrated that they have done little or nothing to collect the unpaid judgments. In fact, the unpaid judgments now total over 6.1 million dollars. (That is just counting the judgments of those who came forward, and those who are still in the CNMI.) Now this department has the audacity to tell the victim it is their responsibility to enforce DOL policies and laws. I assume there is a fee to file a small claims case. DOL is expecting the ripped-off, cheated guest workers to pay this fee to get the money that DOL said is owed to them.
This department has sunk to a new low.

The remarks made against the ombudsman, are totally inappropriate and unjustified. The CNMI Department of Labor issued the administrative orders that they claim the ombudsman is unwilling to give them. They should have the records of these orders and should have records of which judgments have been paid, and which ones have not. To blame the ombudsman because they do not enforce their own policies, and do not collect judgments for orders that they have issued is ludicrous!

Kaipat continues with remarks on H-visas. As reported in the Saipan Tribune, only a small number of professional workers will qualify for H-2 visas when the federal immigration system goes into effect. The federal government will encourage every guest worker who falls under this category to apply for the visa since it offers an eventual pathway to citizenship. However, Kaipat did not mention that workers who do not fall under the category of H-visas will be included in a federally administered CNMI guest worker program.

Over the last few weeks, guest workers from Tinian and Saipan have contacted me with questions on whether it was safe to take a vacation or go to their homelands for medical procedures. They expressed concerns about being allowed to return to the CNMI to continue their employment contract if they left the CNMI. I referred them to the ombudsman, and also suggested they ask an attorney because I was unsure of DOL's policy in regard to exiting workers.

Yesterday the DOL came out stating that vacationing guest workers are required to register with DOL before they exit the commonwealth for vacations. The Marianas Variety reported:

According to the Commonwealth Register, a foreign worker whose contract is terminated is required to exit the commonwealth within 15 days after the termination date of an approved employment contract.

The worker cannot remain unless the contract is renewed, or a case or transfer is pending, or the worker has filed for a 15-day extension in connection with processing a transfer or filing a complaint.

A foreign national worker who exits the commonwealth during the term of an approved employments contract is required to file with the Enforcement Division a notice on the standard form provided by the Department of Labor.

The foreign worker who fails to file the notice before departing the commonwealth may be barred from reentering the islands.

Today the Saipan Tribune reported that the new policy is being questioned by the president of the Coalition for United Workers, Irene Tantiado:

“What effort did they make to explain it to the public? It's purpose is not clear at all!” she said.

Tantiado said she received information on Wednesday that a nurse was not allowed to enter Saipan because he or she failed to notify Labor about his or her exit.
She said it is so easy to follow the regulations, but the non-announcement has serious consequences to the guest workers.

“I called Labor and they told me it's only for data base,” Tantiado said.

Labor public education and outreach director Rose Ada-Hocog on Wednesday confirmed about the implementation of the new policy. She said a foreign national worker who fails to file notice to Labor about his or her exit before departing the CNMI may be precluded from entering the Commonwealth.
Ada-Hocog said under Section 5 of the Labor Rules and Regulations pursuant to Public Law 15-108 states that “a foreign national worker who exits during the term of an approved employment contract shall file, with the (Labor) enforcement division, a notice on the standard form provided by the Department.”

Guest workers have also been asking if they will have to pay for H-2 visas, should they qualify. I asked a federal official this question today. The answer is no. It is the employer's responsibility to bear the costs of visas. If an employer asks an employee to pay for any permits that person should immediately inform the federal ombudsman.

The DOL has repeatedly put forth false information, made excuses and allowances for violating employers, denied the guest workers of due process, and painted a bleak picture of what will happen with the federal takeover.

Yesterday I delivered the petitions from the guest workers requesting green cards to three offices in the Senate and House. After spending the last two days meeting with people in Washington, DC, I am now more convinced than ever that the federalization will result in changes that are beneficial to CNMI guest workers, businesses, and all of the people of the CNMI. Positive changes are around the corner for the guest workers!