Response to Cinta Kaipat on Labor Issues


May 21, 2008

Cinta Kaipat wrote a letter to the editor responding to my criticisms of new and existing DOL policies. I will incorporate my responses in red within the text of her letter below:

Letter to the Editor: Response to Wendy Doromal

A SET of comments on the emergency regulations with respect to the federalization cap, attributed to you, was delivered to the Department of Labor by your reporter Junhan B. Todeno, although we have not received any comments directly from you. Moreover, these comments seem to have little to do with the emergency regulations required when the federalization bill passed. However, these comments have been registered as a part of the administrative process. This is the department’s response.

Doromal response: You did not get comments from me, because I did not send them to DOL, knowing that DOL merely defends positions, such as was the case for those who sent opposing comments on PL 15-108. Mr. Todeno is a reporter of the Marianas Variety; he is not my reporter. I did not ask Mr Todeno to deliver the responses that the Marianas Variety requested from me to the Department of Labor. I am sure he did so to solicit a response from the department regarding my comments, and to seek clarification on important policies and issues. I thank him for that.

1. The only time that a foreign national worker would be repatriated while a case was pending in a court is if the court refused to issue an order authorizing the foreign worker to remain in the commonwealth pending the completion of the case. Foreign national workers are not repatriated pending NLRB, EEOC, or U.S. Labor cases. However, the procedure with respect to determinations on status has changed. The Department of Labor will determine status as soon as a permit expires or a contract is terminated prior to expiration. If eligible, the worker will be given an opportunity to transfer. If a transfer is arranged, then the worker retains status under the new contract. If no transfer is arranged, the worker loses status but may remain until the case is determined before being repatriated. There is no denial of due process.

Doromal response: This statement is different from what was first issued and reported in the Saipan Tribune on May 7, 2008, in an article entitled, "Labor announces a new transfer policy":

"CNMI law provides that a foreign national worker who is required to exit the Commonwealth is permitted to remain for up to 30 days beyond the required exit date in order to pursue civil or criminal claims or to pursue a violation of NMI labor law. In order to stay longer than 30 days, the worker who has a claim in Superior Court or federal court will need an order from the court extending the departure date “as necessary to ensure due process rights are protected.”

Cases pending with other agencies, such as U.S. Labor, the EEOC, the NLRB, or any other outside agency that has jurisdiction within the Commonwealth to enforce federal law, will be handled in the same way as cases pending in the courts.

Kaipat said that any worker who presents to Labor Enforcement a court order or an agency order staying a departure date will automatically be permitted to stay in the Commonwealth for as long as the court order or agency order is in effect. The Labor Department will ask the court or agency to notify the department when the case is over so that the repatriation process can be re-started as necessary. Kaipat said that after expiration of an entry permit, the worker's rights while remaining in the Commonwealth will be determined by the order of the court or agency. Any special conditions or requirements will need to be spelled out in the order.

If, in fact, a guest worker with an EEOC, NLRB, US Department of Labor case, does not require an "agency stay" in order to remain until his or her case is heard, that should be made clear to the guest workers. That is not what was reported in the article cited above. Please clarify this procedure in regards to these agencies. Would a guest worker require an agency stay or not in order to remain in the commonwealth until the case was heard?

Since the EEOC, and NLRB offices are in Hawaii it would be no no easy task for a guest worker to obtain as stay from them. Contract workers have reported that even communicating with these agencies has been frustrating. Employees who would be repatriated because they could not obtain a stay would be denied due process, because it is unlikely that they could return to the CNMI for a hearing. Again, if you are stating now that no worker would require an agency stay from EEOC, NLRB, or the US Department of Labor (as stated in the previous Saipan Tribune article cited above), please retract the previous statement and clarify this for the guest workers.


2. It is not correct to assert that most foreign national workers who bring labor cases, EEOC, NLRB, or U.S. Labor cases are “owed money from violating employers.” In fact, most workers who bring cases of any kind want only one thing —which is to be able to remain in the commonwealth for as long as possible. In a very high proportion of cases, wage claims are abandoned and never pursued, so the employer owes nothing.

Doromal response: You are saying that guest workers are filing NLRB, EEOC and US Department of Labor cases not because they want and deserve justice for labor violations by their employers, but because they want to remain in the CNMI. Your above statement is inappropriate and suggests that complainants are not sincere. The statement alleges that their cases are not valid. The EEOC, NLRB and US Department of Labor cases that I have read do appear to be absolutely valid. In fact, I do not believe that these US agencies would take on bogus, weak or unsubstantiated cases. Many EEOC cases have been filed against employers who have illegally terminated guest workers who became pregnant. Several of these employers refused to pay the workers' medical bills, and many of these offending employers owe the employees money. Other EEOC cases I have read are discrimination cases where employees were illegally terminated and are owed money.

You are attacking the integrity of the guest workers by alleging that they are filing bogus cases merely to stay in the CNMI. I question whether a person who has made as many negative and hostile remarks against the guest workers as you have, should even be employed by a department that determines their status.


3. The Department of Labor does not have responsibility either for deportation of overstaying workers (this is the responsibility of the Division of Immigration) or for enforcement of monetary awards included in administrative orders (this is the responsibility of the Commonwealth Superior Court). The Department of Labor publishes lists of overstaying workers so that any worker whose status needs to be corrected will have an opportunity to get this done. The Department of Labor publishes lists of those who may be holding unpaid administrative orders so that those workers can be assisted in pursuing their claims in Small Claims Court. You are absolutely wrong that the Department of Labor publishes one kind of list and not the other. Please see the lists published on Monday, May 19, as examples.

Doromal response: Here is what you wrote in your DOL mid-term Labor report:


"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."

While the The Department of Labor may not have the responsibility for deportation, the process begins with your department. You stated in the report and to the media, "I will certify the list to the Division of Immigration and we expect vigorous enforcement efforts to follow."

DOL obviously does little to ensure that once an administrative order is issued that it is fulfilled. For decades workers have been denied justice because the CNMI system which begins with a labor hearings, and follows with administrative orders, is not often carried through to the end to ensure that the judgments are paid and orders are followed.

Your published lists do little to help the guest workers. It is very unlikely that everyone on the list reads the papers. It would be much better if those with cases were served with notices instead of relying on published lists to reach those concerned.

As for the list published May 19th, I cannot see that list in the online versions of the papers. Please send me a copy. I did, however see this list published on May 8, 2008:
























This list is not clear. There are no employee names listed, only case numbers, and employers names or business names. Are these hearings only for the employers or business owners? Are employees connected with these cases numbers expected to attend these hearings? Aren't the parties entitled to be notified by personal delivery, by mail, by telephone or another reliable contact first before resorting to the method of notice by publication?


4. When an administrative order is issued, the Labor Department considers a case “settled” only if the parties have entered into a voluntary settlement agreement which has been approved by a hearing officer. In all other cases decided by a hearing officer, the Labor Department considers a case closed 30 days after the order is issued and served on the parties if the matter has not been appealed to the secretary. The department will facilitate payment within a 30-day period by accepting checks from employers and delivering those checks to foreign workers. However, after 30 days, the department does not collect amounts awarded. Collection matters are pursued in the courts. There is no flaw in the department’s policies with respect to its orders or post-order actions. Most administrative agencies in the United States operate this way. In the U.S., no foreign worker is given any special administrative process for assistance in adjudicating wage claims. All claims are made before the courts.

Doromal response: Obviously, the guest workers are not getting paid the money owed to them as stated in judgments, and violating employers are not being held accountable or there would not have been $6.1 million in unpaid judgments collected over the short period of a few months. The system needs to change so that the violating employers are accountable and victims get justice, and actually receive the money that is owed to them. The burden of collecting judgments should not rest upon the victims, whether they are in the CNMI or in the states. A case should be considered settled when all of the terms of an administrative order are fulfilled. That includes paying any judgments.

5. Most employers are law-abiding and pay the monetary awards. Some appeal both to the secretary and to the courts, as is their right. Some win their appeals, and no monetary payment is due. In the past, one problem has been employers who declare bankruptcy (as they are allowed by law to do) and leave workers unpaid. That happens to all types of workers under U.S. law, which allows the discharge of wage claims in bankruptcy. In the past, another problem has been foreign-based employers who leave the commonwealth and leave workers behind who are unpaid. Once persons are beyond the territorial limits of the commonwealth, the CNMI government has no jurisdiction to enforce any administrative order. Another problem has been that foreign workers decide not to pursue their judgments, in some cases perhaps because they are illegal overstayers. The Department of Labor recently turned over to the Department of Finance many checks paid by employers under administrative orders that were never picked up by the foreign worker. In other instances, administrative orders have remained unenforced for years, well beyond the six-year statute of limitations and are now, under commonwealth law, unenforceable. It is not true that the department’s policies are flawed; it is not true that anyone is “sticking it to the workers; and it is not true that anyone is “ignoring the violations of the employers” as you assert. In fact, the commonwealth’s system is much more advantageous to foreign workers than the labor system in the mainland U.S. in nearly every respect. Workers are not disadvantaged by small claims court procedures. Filing a small claims case costs no more than filing a labor case with the Labor Department. Foreign workers do not need lawyers in order to pursue collection in Small Claims Court. The clerks and the judge assist workers to make their claims, and these claims are decided promptly.

Doromal response: If most employers were law abiding, they would have paid the workers what they owed them without the employee having to file a case at the DOL. I am glad to hear that "most" do pay the judgments. I would like to see the statistics and data to back that statement.

Not only foreign-based companies have left the commonwealth without paying employees what they owed them. Workers have reported that CNMI residents have also folded businesses, and fled to Guam or the mainland to avoid paying back wages and honoring judgments.

It is true that this system has allowed millions of dollars that were awarded by administrative orders to the workers to go unpaid. It is true that this is obviously a flawed system.


Why didn't DOL publish a list of the guest workers who had unclaimed checks at the department? What evidence do you have that these people were illegal "overstayers"? (Again attacking the integrity of the guest workers.) Why did DOL sit on these checks and airplane tickets for years? Perhaps some of these workers could have collected them, maybe some have already left the CNMI.

Doesn't PL 15-108 state that it is a guest worker' s responsibility to report to the CNMI Department of Labor any labor abuses within a specified period of time? So an abused worker has to first report to DOL and pay a fee for filing a complaint, and then if it is determined that worker is owed money, he/she has to pay a fee in small claims court to collect what is owed. How much are these fees? How can an employee who has not been paid afford them? Are they forgiven for workers with no money? Please clarify. Again, DOL needs to start publishing lists of employers who are not paying the workers their back wages as ordered, and are not making an effort to honor the orders.

You state that in small claims court the claims may be decided promptly, but are orders from small claims more likely to be paid than orders from DOL? Is this because everyone in the CNMI knows that orders from DOL are not enforced by the CNMI government so there is no incentive to pay? Wouldn't an employer who disregards a labor judgment also disregard a small claims court?

6. There is nothing unusual about using the courts to collect administrative orders that include money judgments. This is done in nearly every state in the United States. That is what courts are for. Courts have far more powers than do administrative agencies. Courts can even send people to jail for significant periods in order to encourage them to pay their debts.

Doromal response: What is unusual is that for decades DOL and the CNMI government never took any steps to collect these monetary judgments on behalf of cheated workers who came to earn money on US soil. It would send a message to the community that violating employers could not abuse employees, if they were sent to jail for not paying debts. I would like to see this happen.

Workers who were employed by huge CNMI security companies are owed large amounts of money. They report seeing their former employers who declared bankruptcy living "the good life" while they were cheated and denied tens of thousands of dollars in back wages. Where is the justice in this? If DOL can issue an order, and not expect it to be enforced then it is a meaningless order.


7. There is nothing unconstitutional about any practice of the CNMI Department of Labor. If you survey the states of the United States, you will find that foreign workers who come to the commonwealth are afforded far more procedural rights and protections than state agencies (for example in Florida), and certainly better protection than federal agencies provide to guest workers in the U.S. In most cases, guest workers get better protection of their rights in the commonwealth than they would if they were working at comparable jobs in their home countries.

It is unconstitutional to deny due process. It is highly questionable and improper for an appeal case to be heard by the very person that heard the original case. Yet this has reportedly happened in CNMI DOL.

In Florida and other states there are no "volunteers" allowed at state agencies and certainly no person who is not an official employee could speak on behalf of the agency, draft policy, or hear cases. Employees at agencies in the states who express racist, hostile, or anti-guest worker sentiments would be terminated; public outrage would demand it.

You are attempting to compare two systems to deflect from the unfair practices in your department. The CNMI labor and immigration system is flawed or victims would have received justice, and violators would have paid what they owe employees, or face serious consequences.

8. In assessing amounts owed to foreign workers, it is important to understand that the commonwealth law allows workers to collect far more than they would if they were working in any state on the mainland. commonwealth law allows collection of a full 12-months unpaid wages if no job was provided. In the states, no worker would collect for 12 months of not working. Every worker would be required to mitigate damages and it is unlikely that more than 30 days of unpaid wages would be allowed for an unfinished contract. In addition, in the states, no “liquidated damages” would double a worker’s award. Analyzed against U.S. standards, foreign workers in the commonwealth are not owed $6.1 million, but less than 1/10th of that amount.

Doromal response: The guest workers are owed far more than $6.1 million. This figure represents only a fraction of unpaid judgments that have been issued over decades that were never collected by workers. In fact, I understand that other unpaid judgments have been collected since the media reported the $6.1 million figure. I know contract workers who returned to their homelands penniless, after giving up on trying to collect wages. The workers are not owed a tenth of anything. They are owed what your department said they are owed in the orders and judgments. It is useless and meaningless to discuss what laws in other places state or to surmise what would allegedly be decided in other jurisdictions.

9. Because many cases are uncontested, with only the worker showing up at a Labor Department hearing, it is not possible to determine with accuracy how many cases of worker fraud exist. As you know, workers and their advocates understand that if the employer does not show up, there will be no one to contest their claims and they can make almost any untrue assertion without fear of contradiction.

Doromal response: Again you are attacking the integrity of the victims suggesting that there is fraud or that the guest workers are untruthful. You do not know that because, as you said the employer did not show. You continually have made inappropriate statements and hostile generalizations, considered racist by some, against the guest workers. In a December 12, 2007 Marianas Variety news article you stated:

"The principal sponsor of the bill that is now Commonwealth Employment Act of 2007 says foreign workers who can’t stand the local labor system can leave."

You made hostile generalizations against the guest workers while attacking Representative Tina Sablan's bill:


"Some foreign nationals speak English reasonably well, have dealt with the Labor Department honestly, and have a working understanding of their responsibilities under Commonwealth law. But many foreign workers of relatively long residence are found by hearing officers to be engaged in scams and frauds just to remain in the Commonwealth. They make false statements in hearings; disregard Department orders; and generally disrespect Commonwealth law."

You also said:

"Many foreign workers who have been in the Commonwealth for five years have records of continuous employment, but that employment is not real. It exists on paper alone and is, in fact, a fraud on the Commonwealth government."

And then you continued detailing what you call "undesirables."

Here in this letter you are again attacking the integrity of guest workers by accusing them of filing cases to remain in the CNMI. You owe all of the workers in the CNMI an apology.


10. The Department of Labor is not “blaming” the ombudsman for anything. The department asked the ombudsman to provide copies of the orders and sworn statements that the ombudsman had collected. The ombudsman refused. The ombudsman can choose not to cooperate with the Labor Department. The department simply stated that the ombudsman had chosen not to cooperate; that the department is short-handed and does not have the staff to sort through years-old files that have been sent to storage and; therefore, the department decided to deal with this matter administratively, which the department is doing. Please recall that the ombudsman has the assigned task of assisting foreign workers with their claims. The ombudsman never acted in 1999, 2000, 2001, 2002, 2003, 2004, 2005, or 2006 to do anything about unpaid administrative orders that were lapsing beyond the statute of limitations and thus becoming unenforceable under commonwealth law.

Doromal response: You said in your report:

"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 ombudsman knows that the DOL has the orders, because the DOL issued the orders. Why are you asking for orders that your department issued? Did you lose the originals? I do not understand this concept. The department should have records of the orders that they issued, and should know which claims were and were not paid.

I do not believe that the ombudsman was employed in some of the years that you listed here. Could you please tell me what the DOL did in 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007 to ensure that the employees who were owed money as determined through your hearing and administrative orders, received it? Did you publish a list of employers who did not fulfill judgments within the required period of time? Did you forward the orders to the CNMI Attorney General's Office for action? Did you send the unpaid judgments to the courts for action? Did you forward them to the ombudsman's attention? Were the offending employers allowed to hire new recruits? Were all of the hundreds of offending employer barred from hiring new workers until they paid their debts to their former employees?


If you have further questions or comments, please let us know.

CINTA M. KAIPAT

Deputy Secretary of Labor

6 comments:

Anonymous said...

Ma'am Wendy,

Thank you very much for defending our side and cause. As I am going along this topic and others, I can see that you have spent every effort, talents, money and almost everything for the justice of the guest workers.

I hope that someday we can attain what we are fighting for. And I hope someday the guest workers will return something back.

Tinatanaw namin na malaking utang na loob ito sa inyo at sa inyong pamilya.

More power to you and your family. God bless...


Flametree....

Anonymous said...

MS CINTA KAIPAT, YOU ARE A GOVERNMENT EMPLOYEE AND YOUR BIG SALARY IS COMING FROM CONTRACT/FOREIGN WORKERS TAX!!! STOP HUMILIATING US!!! JUST ACCEPT THAT WE, FOREIGN/CONTRACT WORKERS ARE IMPORTANT PART OF THE ISLAND SUCCESS. SAIPAN WILL NEVER BE WHERE IT IS WITHOUT US!!!

Site Administrator said...

Dear Flametree

Thanks for your message. The guest workers have given and given and given. I hope you finally receive justice...

Best to you

Wendy

Anonymous said...

In my opinion, this is again one of a e misinformation letter that Ms. Kaipat/Fitial Administration is doing as a scare tactic.

With S.2739 now signed into a law, here PL 15-108 will is again a waste of local/taxpayer money (just like hiring a lobbyist).

I have been here in the CNMI for 8 continuous years and been a productive non-resident worker. I am employed legit and so it is not fair to say that my employment is not real.

Lord please forgive Ms. Kaipat and the CNMI DOLI for they know not what they are doing.

Anonymous said...

Kaipat can stop with her dumb laws and rules and start looking for her own job. She won't have one by next June.

Anonymous said...

The Department of Slaver has no real direction. Even the immigration dept. disagrees with them.