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:
The letter to the editor by Saipan Attorney Jane Mack suggests that the CNMI is overstepping legal lines. Ms. Mack writes in part:
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 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.Perhaps the Fitial Administration's real aim is to turn their battle against the federal government into a war?
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.
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.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.
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.