Ominous Bill Passed in House and Senate

March 19, 2010

In an act of defiance to the federal government both the CNMI Senate and House passed the ominous Omnibus Bill that has been pushed by the Fitial Administration in a desperate attempt to maintain control of their broken labor system. Much of the bill makes changes to CNMI law taking what was once under CNMI immigration law, and relabeling it to labor law. Of course, this does not change the fact that the CNMI no longer has control of immigration and of foreign employment. Taking immigration law and wrapping it as labor law won't make it labor law.

The bill is considered by many to be unconstitutional and in conflict with federal law. Yet only two legislators voted against the bill: Reps. Ramon A. Tebuteb (R-Saipan) and Ray N. Yumul (R-Saipan). The bill was passed unanimously in the Senate. The House legal counsel, John Cool, claimed that the bill was legal, as did Attorney General Edward Buckingham. Most expect the legality of the bill to be challenged.

The bill also contains a provision requiring business owners to hire a certain number of U.S. citizens based on a floating benchmark. Attorney Jane Mack said this about the provision the Micronesian Legal Services site, Local Preference in Hiring:

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.”

Implicit in the word “also” is that such practices violate Title VII, absent bona fide job qualifications.

Can the CNMI, by passing legislation that sets residency or citizenship requirements, create bona fide job qualifications? It would seem that the CNMI would need a compelling state interest to engage in such discrimination. A preference for US citizens would be the province of the US government, and federal law would likely pre-empt CNMI law on the subject. U.S. law has already set a balance.

2) 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.”
The bill conflicts with PL 110-229, the IRCA and various other federal laws.

The Saipan Tribune reported:

HB 17-25, HS1, introduced by Rep. Rafael S. Demapan (Cov-Saipan), amends sections of the Commonwealth Code dealing with immigration functions, to reflect the assumption of immigration responsibilities by the federal government pursuant to Public Law 110-229, Title VII, which became effective on Nov. 28, 2009.

House Minority Leader Diego T. Benavente (R-Saipan) said the “questionable” piece of legislation contradicts federal position, which was also highlighted in separate questions-and-answers documents.

It seems to me that the bill pushes the agenda of the governor that the federal government is wrong; that we control labor, not the federal government,” said Benavente.

Buckingham said the bill clarifies the role of the CNMI Department of Labor and gives direction to employers and nonresident workers.

Kaipat said the bill “brings clarity” on what's pre-empted and what's not, adding that coming up with the umbrella permit is an ingenuous way to stabilize the workforce and allowed the CNMI to continue to implement the local law.

“I urge all of you to pass this bill today,” Kaipat told House members.

As Buckingham earlier said, the CNMI Labor has the authority to revoke umbrella permits, contrary to statements made by Federal Labor Ombudsman Pamela Brown that seem to suggest that an umbrella permit cannot be revoked.

Buckingham also earlier said that CNMI Labor has both the authority and the duty to monitor compliance with umbrella permit holders, and should one or more conditions of the umbrella permit are not met, the umbrella permit may be revoked.

Benavente voted “yes with major reservation,” while Rep. Francisco Dela Cruz (R-Saipan) voted “yes with reservation.” Benavente said he still thinks that the bill is questionable.

The letter to the editor by Saipan Attorney Jane Mack suggests that the CNMI is overstepping legal lines. Ms. Mack writes in part:
The CNMI says that aliens with umbrella permits might not have been able to stay for the full two years if they didn’t comply with certain CNMI labor requirements; so, it argues, the CNMI should continue to be allowed to enforce those requirements.

The CNRA does not say this. It does not suggest this. The clarity of the "transition effective date" as the date upon which rights and privileges are determined contradicts this interpretation.

Furthermore, the CNRA expressly gives the U.S. control over the transitional worker program, making it clear that it is the U.S. that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA’s transitional worker program administered by the U.S. to allow the CNMI to continue to administer its own alien worker program during the transition.

Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employment for those aliens present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security’s authorization to work?

The CNMI wants to do something different than what the U.S. is doing in the very field that the federal law CNRA deals with-alien labor. The U.S. transition program for alien labor clearly puts this power with the U.S. government. Under the U.S. Supremacy Clause, the federal law pre-empts the CNMI's laws. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (Nov. 28, 2009). The CNMI can’t revoke the Secretary of Homeland Security’s authorization for employment. It can’t pass laws or take administrative action now that effect status of any alien or add burdens not contemplated by Congress.
Perhaps the Fitial Administration's real aim is to turn their battle against the federal government into a war?

Ombudsman Helping Workers and Employers
Federal Ombudsman Pamela Brown advised all workers who do not have an umbrella permit and have expiring work permits to go to her office to get help in changing to federal status.

From the Saipan Tribune (emphasis added):
She said the worker should be accompanied by the employer and they will both be assisted in obtaining parole status and work authorization with the U.S. Citizenship and Immigration Service until a CW visa is granted.

With respect to the CNMI entry permit, Brown said if the alien has an umbrella permit then there is no reason to renew any other permit.

“The umbrella permit supersedes the prior CNMI permit,” she stressed.

As for the continued employment with a current employer, the ombudsman said the employer and employee only need to agree to the terms and conditions of employment such as benefits, work hours per week, rate or pay, and basis for termination.

“No other action is necessary since the approval of the federal government or CNMI government is not required for continued employment of an alien holding an umbrella permit,” she said.

In the case of workers having Immediate Relative status (240E permit), Brown said the Department of Homeland Security sees an umbrella permit for them as not permitting the holder to work.
The will be a forum at Kilili Beach from 5:00 -8:00 pm tonight sponsored by the United Workers Movement. Federal officials will be addressing some issues on CNMI and federal authority, umbrella permits and other foreign worker issues.

21 comments:

Anonymous said...

This says a lot about the CNMI Legislature. They are useless sheep. Even Benavente says he has doubts if the law is legal then he votes yes. The only legislator with any principle was Tina and she's not there. We are screwed.

Anonymous said...

They can make all the laws they want. I won't go to DOL again. If I add up all the cash I gave them all the years Its more than I make in a year. I'm following the feds now.

yho r. villavicencio said...

my friends and i got together to discuss this very upsetting news last night. we will puclicly express our position on this through massive letter writings and taking to the streets if needed. we have already discussed this with a very prominent figure here who expressed support to this move.

we would like to call on everyone to please attend the forum this afternoon.

we have read PL 110-229 over and over again, we have listened to and have read analysis of all who cared to explain. we are not lawyers, but we are confident that we are intelligent enough to distinguish right from wrong.

we will go out there to protect our rights as lawfully admitted guest workers here in the cnmi.

captain said...

Could be this legislation from the beginning be illigal. I thought any legislation was supposed to be posted for 72 hours and also to have public input before a vote.

Now this useless legislature (Puppets)slam another questionable law on the people. I think that the business community should take this to court, but I doubt that any of them will as they are in the same bed as Fitial.

The other thing is the Feds have not taken a solid stand yet and that is causing more problems.
But as I am looking at this latest act, maybe it will force the Feds to change the status of these workers, maybe a parole or other type.
Along the lines as suggested by Pam, maybe all of the employers should just put all of their workers under the Feds.and get it over with
And how is DOL going to "deport" any worker that does not comply as it was stated that the Feds would not.
How is DOL going to collect any "fines" from any employer that does not comply.
The only thing that NMI can do is to not renew a business permit, but I doubt if they would be that foolish.
But maybe, again, they are/would be that foolish as these people are on their own agenda and not for the people or business owners.
And many wonder why no new investments and some that have come have put their plans on hold.
Well unless the Feds jump in this will be a long and "lean" time for the NMI.

MALOU BERUECO said...

we will not opposed this one...there's nothing to be opposed. we know this is unlaw & unconstitutional...we are not confused!...we will show and let this government knows, we know where and when their authority ends...and that the FEDS has the authority now with regards to our immigration status & emplyment!...
this congress & senate is starting to scare me. that anytime i may leave cnmi, i will leave my son, daughter & grandchild with these bunch of puppets!...
as someone so prominent person here in cnmi told me "it is SAD, that the best leaders are not in the office right now and that includes all of us here who understands what can be and cannot."

Anonymous said...

A desperate act by an impotent legislature and governor who can't pass a budget, can't make payroll, can't pay the government's medical referral bills, can't keep toilet paper and pencils in the schools, can't keep the lights on, can't prevent the hospital from falling apart, and can't even make court-ordered payments to the Retirement Fund.

They can't even admit to themselves they are violating the CNMI Constitution by not having a balanced budget, let alone trim spending by laying off the thousands of unnecessary government workers.

So instead they pass legislation to thumb their noses at the Feds.

Is the CNMI capable of governing itself? Is it time to admit that their experiment with democracy has failed?

Wendy said...

The foreign workers have nothing to fear. What can DOL do if NOT ONE foreign worker goes to pay for their bogus permits? NOTHING! They have absolutely no control over the foreign workforce and have no powers to deport them. The Fitial Administration and their followers (those people getting a fat salary for saying yes, the emperor has clothes) are truly desperate. Their bill has as much credibility and legality as if someone were to declare herself queen of the world and it would make it so.

The Foreign National ID Card scheme complete with jail time and $500 fine for not having one is really disgusting. Who is going to police 21,000 foreign nationals to see if they have IDs? The law enforcement branch of DOL? The CNMI police?

No local government has the right to force foreigners to carry IDs. They are not the federal government and the federal government said umbrella permits are valid until 2011. Do NOT get a Foreign National ID if you have an umbrella permit!

Once everyone understands that the CNMI lacks power over immigration and employment of foreign workers, and they stop going to DOL, the fight will end. DOL can revoke permits, but they will just be spinning their wheels. It's a meaningless act as long as the federal government says it is. And they have spoken.

Malou, you are right! No one should let these people try to intimidate you or scare you.

Yho, let me know if you need addresses and contacts for your letters. Good for you!

Captain, you made some good points. DOL cannot even track who has or has not followed their illegal quota law. I also think that the guest workers who have been told to pay for useless unnecessary permits from DOL should sue to get their money back. Ditto for the employers.

I am astounded that only two people voted against this bill. People will surely remember how these legislators voted.

Seems, the bottom line is that the CNMI made loads of money off of the foreign workers and employers and they just don't want to let that go.

Anonymous said...

John Cool? Disappointing...

Anonymous said...

BOYCOTT DOL! DEPARTMENT OF LUNACY!

Anonymous said...

"Seems, the bottom line is that the CNMI made loads of money off of the foreign workers and employers and they just don't want to let that go."

They will continue to make money off of foreign workers Wendy and foreign workers will continue to make money off of the CNMI, no loads but money. Unitl 2014 when 95% will be back in the PI. It;s called Capitalism. It's called free market economy. The CNMI and US provided jobs for thousands of foreign workers and most of their money went straight home to feed their kids. So stop already.

Your Fed-worship is what's scary Wendy. BTW, what about jobs for US Citizens? What of our plight and suffering. Why no candlelight vigils for us? Where are the meetings held for Americans who have little or nothing?

All this will come to light. The Feds should do their job and deport illegals, keep abu sayaf and the triads under control and start enforcing US Immigration law in the CNMI.

Wendy said...

Anonymous 11:48

Listen up. The CNMI DOL is disgusting and always has been. WHY? Because not only have they charged ridiculously disproportionate fees to workers who live way below the poverty level, but they allowed them to be cheated of over $6.1 million in unpaid wages. If that's not enough they let the unscrupulous, cheating employers get off without consequences. It's not called capitalism, its called unjust.

I am not a "fed-worshipper" as you claim. I disagree with the federal government on issues. I agree with them on this issue. If there is one thing I do respect it is social justice. There is little in the CNMI, and less each passing day.

What about jobs for US citizens you ask? No one is discriminating against US citizens. The CNMI government even pushes for quotas for US citizens which I doubt is legal. You want a vigil for U.S. citizens -make one!

Yes, the federal official should deport people who are illegal and they will. No one is arguing about that.

Do you think the foreign workers just showed up in the CNMI? They were lured and recruited to fill jobs that the residents were not skilled to do or did not want to do. Of course the foreign workers spend their money on their own families. Who do you think they are going to spend their money on? What worker anywhere does not work to support his or her family. Are you for real?

Anonymous said...

The feds should do their job and strike down the CNMI's unconstitutional laws and start kicking butt.
Enough with this nicey nice to the CNMI government. This administration needs to be put in its place and stop threatening people. And all you brown nosing haole lawyers you need to stop kissing Fitial butt and get some damn scruples. You are a disgrace to the profession!

Anonymous said...

Noni 10:29

Yes, it is time.

the teacher said...

This is an expected reactionary act of desperation by “puppets dancing at a dime carnival show”, to quote someone; and the fallen status quo regime scrambles to gain some degree of control on CGW’s, the central element of restricting workers here, or conversely, the main achievement improving the status of workers here.

Captain said...

Wendy 11:01 We all thought that the people would remember about Fitial and his puppets last election, But the memory is short in the NMI for tha majority of voters that can be bought off easily. So unless the AFeds make an example of this admin and it's so called lawyers, thia will continue until and after this "clowns" rule.
"It seems only the Chamorro (Guam and CNMI) do they not learn by their mistakes".(from one very old Manamko statement to the Guam PDN)

Anonymous said...

If any alien holding an umbrella permit is arrested for not having a foreign national ID, go to the Ombudsman. Those who attempt to enforce that law may themselves be indicted and jailed for federal Civil Right violations.

Melberlin said...

Two lawmakers voted "yes with major reservation"? They are doubted that prevents them from accepting this bill wholeheartedly.

Can a citizen sue the CNMI Senate and the House for this? I think it's like in the US, it's NO to sue Congress? But we can sue an agency such as DOL in some cases if they carry this law out due to in conflict with some federal laws.

red october said...

AGAIN AND AGAIN PEOPLE JUST IGNORE THE CNMI DOL THE FEDS HAVE SPOKEN ALREADY.

Anonymous said...

You will have no luck suing the local Congress, but could sue the CNMI government for encroaching your civil or constitutional rights.

Captain said...

noni 1:07 I agree. Maybe Pam can post a 24/7 cell number for anybody that may encounter problem with any of these clowns. I do believe it will take one case to make these clowns to "back off". Hopefully not.

Anonymous said...

No, you can't sue the Congress. BUT you can vote the dumb a**es out of office.