Labor Takes

March 16, 2010

Businesses Oppose Floating Benchmarks
Cinta Kaipat spoke to lawmakers last week pushing the idea of a "floating benchmark" on the hiring of local residents. The law would require business to hire a percentage of U.S. qualified persons to work in the private sector based on population statistics.

First, if the law passed it would likely be unconstitutional and go against established federal law. Secondly, the DOL would have no way to enforce the law since the federal government now controls the foreign workforce and not the local government.

Now it is being reported that the business community opposes the floating benchmarks. The Saipan Chamber of Commerce executive director, Kyle Calabrese stated that the Chamber is opposed to the floating benchmark. Cabrese told the Variety:
“We are particularly concerned about the floating requirement in light of the lack of reliable data since the 2000 decennial census,” Calebrese told Demapan in a letter dated yesterday. “This is an inequitable turn of events for many employers in the commonwealth who have complied with the fixed percentage requirements of Public Law 15-108 and related regulations.”

“We urge the Legislature to retain the minimum percentage requirements contained in Public Law 15-108. The legislative authority to set this policy should not be ceded to a governmental department which has no more timely access to better data than does the Legislature,” he added.

...“We believe that both the federal and local governments, differences of opinion, notwithstanding, share a common goal: the increased employment in the commonwealth of individuals authorized to work in the United States, particularly U.S. citizens. The chamber supports this goal,” said Calabrese.

“However, the commonwealth government has repeatedly maintained that our community lacks the necessary local labor force to maintain and develop our economy. We wholeheartedly agree…. In light of this reality, the employment of foreign workers in the commonwealth is a necessity, not a luxury. We do not believe that employers should be unduly penalized for making use of the necessary hiring of foreign workers. Unfortunately, the act [H.B. 17-25] does not consider this issue,” he added.
Interesting, because I would guess that even the existing law is now illegal since the CNMI DOL no longer has authority over foreign employment matters. How could DOL penalize the business owners anyway? They lack enforcement powers or authority. I like that he recognized that the foreign contract workers are a necessity and not a luxury.

Attorney Jane Mack has an excellent post on the floating benchmarks on her Day in Court blog, The "Local Preference" in Hiring. Jane states:
Under US law, it is illegal to discriminate in hiring, firing, and some other matters based on citizenship.

1) Title VII prohibits discrimination based on “national origin.” This includes not only intentional discrimination tied directly to national origin but also practices that have an adverse impact relative to national origin. Adding a citizenship requirement to hiring decisions in the CNMI would adversely impact many specific groups based on national origin—including citizens of the FSM, Palau and the Marshall Islands, and US permanent residents and others who are present and lawfully eligible to work from the Philippines, China, Korea, Japan, Bangladesh and other countries. Such a “citizenship’ requirement imposed by employers would be illegal discrimination unless it was tied to actual bona fide job needs (such as meeting security classifications for some federal jobs in transportation, etc.). The EEOC enforces these provisions.

The EEOC website says
“Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.”

...The Immigration Reform and Control Act (IRCA), §274B, 8 U.S.C. §1324b, specifically prohibits citizenship or immigration status discrimination with respect to hiring, firing, recruitment or referral for a fee by employers with four or more employees. The Office of Special Counsel enforces the anti-discrimination provision. Their website says: “Employers may not treat individuals differently because they are, or are not, U.S. citizens.”
(Read her entire blog post for a detailed legal analysis.)

Ominous Omnibus Bill Being Pushed
The CNMI Legislature wants to push through the ominous "omnibus bill", H.B. 17-25 that attempts to override federal law and allow the CNMI DOL of Labor to continue to oversee the foreign workforce even though PL 110-229 took away that power on November 28, 2009. It was drafted by Howard Willens and presented in a comment to DHS in December 2009. The Marianas Variety reports that Senate and House back-to-back sessions will be held Friday to pass the legislation. They apparently believe it will allow them to maintain control over the umbrella permits and immigration matters that will be disguise as labor matters. The article states:
Senate President Paul A. Manglona, Ind.-Rota, and Gov. Benigno R. Fitial met on Monday at the legislative building.

H.B. 17-25 which Rep. Rafael S. Demapan, Covenant-Saipan, sponsored, changes the definition of the CNMI-issued entry permit as an identification card, which the CNMI government will require every foreign worker, student and investor to have every year, despite having their umbrella permits that are valid through Nov. 27, 2011.

The U.S. Department of Homeland Security, however, recognizes the umbrella permit as a legal immigration document that allows its holders to stay in the CNMI even if the local government revokes it.

With the immigration system of the CNMI federalized since Nov. 28, 2009, only the federal government can remove any alien on the islands.

H.B. 17-25 seeks to mandate all foreigners in the CNMI who are working, studying and doing business to register with the local Department of Labor if they stay beyond a 90-day period.
It's another attempt to maintain power and continue to collect revenue from those who can least afford the fees -the foreign contract workers.

Employers Question CNMI Take on Umbrella Permits
Employers are wondering if they have to renew employees who have labor permits expiring, but have umbrella permits that are recognized by the federal government until November 27, 2011.

From the Marianas Variety:
A major issue now among employers is whether they should still renew with the CNMI Department of Labor their foreign hires whose entry permits are ending this year but who hold umbrella permits valid through next year.

These employers said they would rather save the money they have to pay the CNMI Department of Labor.

The Saipan Chamber of Commerce said it would ask the CNMI government to provide further explanation about the umbrella permits.
It's one thing to have the foreign nationals question the administration, but certainly another having the business community question them. The foreign nationals remain a disenfranchised underclass despite years even decades of living and working in the CNMI while the business owners are primarily voters. This should be interesting.


swivel chair lawyer said...

Why would businesses want to pay the CNMI Department of Labor, and execute a new contract binding them to provide medical benefits, housing, food, repatriation tickets, or whatever, if they don't have to?

When local businesses decline to renew their employees with the CNMI Government, the whole house of cards will come tumbling down.

DoL revenue will dry up, and the CNMI Government will fall even more deeply in the red, just as they predicted in their Section 903 Lawsuit filings.

But this is not an unalloyed victory for guest workers. When the feds promulgate their list of fees for employers who want to hire guest workers past November 27, 2011, a lot of them will cut back foreign employees even further.

folding chair lawyer said...

Indeed, there are big changes coming. I'm guessing DHS will be announcing the rules very shortly. They may even grant parole to guest workers to end the bickering.

dick chair lawyer said...

Hear, hear! Honor!

“Federalization: You asked for it; you got it.” © 2008, Ms. D.

Anonymous said...

"Aggressive policies to cut back on public spending by the governor of the Commonwealth of the Northern Mariana Islands are causing a rift with the Speaker of the House of Representatives.

Pam Brown, the legal counsel for Governor Juan Babauta, says after nine months in office, the governor and Representative Heinz Hofschneider are struggling to work together.

Observers says the governor’s policies to revive the territory’s economy and to solve a possible takeover of its immigation laws by the US are the reasons for the rift.

Ms Brown says the two men are yet to define their working boundaries and the level of involvment of the Executive and Legislature in each other’s affairs.

She says there is the perception by some that Governor Babauta is working unilaterally.

“It’s more like a political power struggle between the speaker of the house and the governor. They are both new in their jobs. Governor Babauta has made it clear that he is going to be aggressive in following the law and making sure that others follow the law. And he has initiated some reforms in how things are done but it has not always sat well with everyone else..”

...and the penny drops.

Jane said...

The Day In Court blog is an MLSC blog. It's not my blog. The attorneys here can all post to it, and do. The posts you're citing happen to be mine, but the blog is not.

just fyi.

Anonymous said...


Could you define exactly what "granting parole" means in simple terms? And what that means for contract workers' ability to travel back and forth from their homeland, as well as within US territories? Thanks.

Wendy said...

Jane: Thanks for the clarification. The site has many valuable resources for residents and nonresidents.