Short Takes from the CNMI

June 5, 2010


Another Unfounded Attack?
I doubt that it is a coincidence that Fitial falsely criticized the U.S. Department of Interior and the National Park Service of denying CNMI companies an opportunity to bid on a project for American Memorial Park. Fitial and pals claimed that the federal government violated the American Recovery and Reinvestment Act rules.

An engineering services contract was awarded to companies outside of the CNMI. All federally funded contracts are publicly posted and advertised. Perhaps the governor needs to have someone checking for CNMI contracts that come up?

Fitial Commerce Secretary Michael Ada and Energy Division Director Thelma Inos claimed that the local government was not given the opportunity to bid on the project.

KSPN2 news reported that the criticism was unfounded:
The national park service insists that it properly awarded a contract to a non–CNMIfirm for a project at the American Memorial Park. Fitial says the Department of Interior violated stimulus act rules by denying CNMI firms the chance to bid on a solar power contract at the park. But Susan Husari in Oakland says, "It was basically solicited, full and open, and there were no proposals submitted." The contract is worth about 39–thousand dollars.
Sound familiar? Doesn't this sound like the complaint that the CNMI government was not given the opportunity to give input on the DOI recommendation?

The Covenant Party also has a problem with the American Memorial Park. Last month the American Memorial Park fined Joe Camacho's campaign manager for littering. This was not merely an incident of throwing a gum wrapper, but littering to the extent that it took national park officials two hours to clean up the mess.

Unconstitutional PL 17-1 "Now in Effect"
If anyone cares to follow a local labor law that is most likely going to be challenged in federal court because it preempts federal law, then the CNMI DOL has announced that it has gone into effect. The law, PL 17-1, requires foreigners to register or face a fine of $500, jail time, or both.

The problem is that the CNMI government no longer has authority over immigration and the foreign labor activities. In a blatant violation of U.S. law, PL 17-1 also requires a "floating benchmark" for hiring residents.

Additionally, the arrogant CNMI Department of Labor has defied federal law and mocked statements by federal officials stating that the local agency can revoke umbrella permits. The federal officials have made it clear that they do not have that authority.

Let's see if this defiant bunch of power grabbers has the money to enforce their law. They never enforced other labor law and instead allowed thousands of foreign workers to be cheated by unscrupulous employers. Perhaps they looked the other way when employers cheated the workers because there was no financial gain for the CNMI government in actually enforcing their own policies. However, PL 17-1 will help feed the hungry CNMI coffers.

To date the U.S. DOJ has not taken action against DOL or challenged the law. We are waiting.

The Federal Labor Ombudsman stated that any foreign worker or employer having questions concerning labor or immigration issues is welcome to inquire at the Federal Ombudsman's Office. It is the federal position that foreign workers have no need to report to DOL for the purpose of "registering" or renewing umbrella permits, which the federal government recognize as valid until November 2011.

CNMI Democratic Party wants to Align itself with the National Democratic Party
The leader of our Democratic Party, President Barack Obama signed off on and supports the controversial DOI Report. Apparently the CNMI Democratic Party doesn't.

Still, the CNMI Democratic Party claims that it wants to align itself with our national Democratic Party. They may want to first get an understanding of where our party stands on basic issues. Our national Democratic Party supports national immigration reform, a pathway to citizenship for long-term foreign workers (and even an earned pathway for illegal aliens), human rights, and civil rights.

The Democratic candidate for CNMI's U.S. Congressional delegate, former lt. governor Jesse Borja has joined the popular bandwagon that claims that the DOI Report is defective. This is the same former lt. governor who, when in office with former Governor Frolian Tenorio, backed the hiring of lobbyist Jack Abramoff. That act cost the CNMI about $11 million and a well-deserved bad reputation for allowing human rights, labor rights and civil rights violations of tens of thousands of foreign workers.

Candidate Borja's views may also conflict with the federal government's interpretation of the Covenant as indicated in a June 7, 2010 Marianas Variety article.

The local party does support raising the minimum wage, but how many other views of the local party actual align with the national party's views and platform? The CNMI Democratic Party may want to check their views and agenda before considering joining the national party.

Rota Nurses Scandal
I hope that the nurses on Rota have contacted the U.S. Department of Labor because from all reports it looks like the deductions made from their pay by Director Crispin Ayuyu were retaliation for the nurses signing a petition to oust Ayuyu as director. From the Marianas Variety:
Dexter Apatang, one of the petitioners, said they are still asking the Office of the Personnel Management to look into their complaints.

Apatang said Ayuyu decided to reinstate their normal work-hours in the next payday “because of the negative effect” of the paycut.

He said it was too late to reinstate their pay for last Friday’s payroll since it was already processed.

He believes that the one-hour salary deduction for their “absence without leave” was a form of “harassment.”

Apatang said Ayuyu thought that the petition against the resident director was drafted during office hours.

Twenty-nine signed the petition but the two who later withdrew their signatures were spared from the paycut, Variety was told.

The petition accused Ayuyu of misconduct and dereliction of duties.


Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment rights.

14 comments:

The Saipan Blogger said...

The Interior recommendations are just that, recommendations. The leaders of the CNMI are so concerned with what they don't want that they aren't focusing on what they do want. Even Fitial has not been able to clearly articulate what he wants to see happen. Nor has Kilili. And as the news states today, neither has Borja.

Wendy said...

Angelo -Exactly. They are recommendations. It's not so much about what they really want, but what they don't want, which is for the long term workers to be granted status.

Pam said...

Any alien that is concerned about his/her status should call my office for assistance. Aliens with umbrella permits must understand that they cannot give it up for any reason. The Federal government will not recognize any permit issued by the CNMI to any alien after November 27, 2009.

Pamela Brown
Federal Ombudsman

RED OCTOBER said...

My fellow GWs Ms.Pam made it very clear again, don't be CONFUSED period....

Anonymous said...

Dear Ombudsman Pam,

To quote you: "The Federal government will not recognize any permit issued by the CNMI to any alien after November 27, 2009". What do you mean by "any permit"? Is it just the umbrella permit? My job renewal will be on August and so is my entry permit. Does it mean that my renewed entry permit will also be useless to the federal? I'd be grateful for your answer.

Anonymous said...

Wendy said...

The problem is that the CNMI government no longer has authority over immigration and the foreign labor activities. . . . Additionally, the arrogant CNMI Department of Labor has defied federal law and mocked statements by federal officials stating that the local agency can revoke umbrella permits. The federal officials have made it clear that they do not have that authority. Let's see if this defiant bunch of power grabbers has the money to enforce their law. . . . To date the U.S. DOJ has not taken action against DOL or challenged the law. We are waiting.

The CNMI may indeed be preempted from regulating foreign national workers in the CNMI if the CNRA or regulations promulgated thereunder explicitly or implicitly “occupy the field” such that there is no room for CNMI regulation, or if there is an explicit contradiction between CNMI and federal regulations.

Such is not the case. Public Law 110-229 explicitly states that CNMI law and regulations will have at least some effect until November 28, 2011. And most importantly, DHS USCIS has not adopted its own Contract Worker regulations! Any “statements by federal officials” in an attempt to “make it clear” that CNMI authority has been preempted are not worth the paper they are printed on!

Especially when the “statements” are made by Interior, which is not the agency vested with immigration control under federal law!

USCIS must issue the darn regs! Now!! ASAP!!!

Until then, sadly, the CNMI Department of Labor has every legal right to require foreign national workers to comply with CNMI law. And the federal government well knows this, which is why there will be no federal lawsuit on this score in the absence of such valid federal implementing regulations.

People who want to continue working here, and who want to get scarce jobs in the CNMI, would do well to comply with CNMI law until it is superceded by some DHS USCIS regulatory law in writing.

The opinions, statements, and arguments of Department of the Interior employees do not have the force of law. No matter how much they are repeated in this blog and the Marianas Variety.

The law is the law, and our future fellow Lawful Permanent Residents need to stay in the habit of following it.

Wendy said...

Anonymous 6:35

Registering aliens is an immigration act, not a labor function. The CNMI does not control immigration as of November 28, 2009.

In a previous post I published a notice that the CNMI-only guest workers program regulations would be issued in September 2010.

Pam said...

Anonymous 3:53: The Federal government will recognize all CNMI permits, umbrella or otherwise, that were issued before November 27, 2009. Renewal of your entry permit may require that you give up your umbrella permit, if you have one. I highly recommend that you not give up your original since that is what provides you the authorization to remain and work in the CNMI until November 27, 2011, the date of its expiration.

Also, if I may respond briefly to the anonymous posting at 6:35 a.m.: please go to the USCIS website and download the Questions and Answers for Employment of Aliens in the CNMI. Also, as for whether or not P.L. 110-229 preempts the CNMI ability to regulate workers and require them to register, please see HINES v.
DAVIDOWITZ, 312 U.S. 52, 61 S.Ct. 399 (1941) and Lozano v. City of Hazelton, 496 F.Supp.2d 477 (Penn. 2007)(just one example of a Federal court ruling that a local law attempting to regulate employment of aliens is preempted by Federal law).

Pamela Brown
Federal Ombudsman

Anonymous said...

It is not just Interior that says the CNMI DOL is overstepping their authority. DHS issued a question and answer memo on the USCIS website which stated that CNMI DOL has no authority to revoke an umbrella permit, and workers do not need to report to CNMI DOL.

I believe that workers are caught in the middle of both the CNMI government and employers refusal to embrace the federal system and let go of the status quo. If you ignore a problem long enough it will go away is the mantra of the CNMI.

Status should be given to skilled workers provided that U.S. workers are no longer available, which is currently available now. Unskilled workers are not needed permanently in the CNMI. Saipan is not a steady year round tourist destination, it is seasonal with high and low periods. Seasonal and work study visas are currently available and should be used. Employers say that the CNMI is different, but it is not. Why is Guam able to recruit mainlanders for their strip clubs, but the CNMI cannot. Why can Guam use H-visas for construction, but the CNMI needs permanent workers. Why can every tourist resort in Florida and the east coast use J, Q, and H visas for their tourist industry workers, but the CNMI needs permanent workers. The only reason the CNMI needs permanent workers is that it is easier and cheaper than training new workers. And since the CNMI DOL keeps getting fees, they agree with the same lie that we need permanent workers.

Anonymous said...

Question:

Why is it that if there's a problem between an employer and an employee, they still need to go to labor to settle the dispute? An Ombudsman employee accompanied a person to file a labor complaint against her employer. I thought we dont' need to go there anymore.

Anonymous said...

Interior Ombudsman representatives accompanying workers to CNMI Department of Labor hearings is strong evidence that the total preemption claimed by Interior does not exist. Also, the CNRA expressly gives validity or effect to at least some CNMI law up until November 28, 2011, unlike the two preemption cases cited above by Ombudsman Pamela S. Brown.

Unskilled workers are not needed permanently in the CNMI. Saipan is not a steady year round tourist destination, it is seasonal with high and low periods. Seasonal and work study visas are currently available and should be used. Employers say that the CNMI is different, but it is not. . . . Why can every tourist resort in Florida and the east coast use J, Q, and H visas for their tourist industry workers, but the CNMI needs permanent workers.

When is the CNMI's annual high season? On a month-by-month basis, does the CNMI really have any months with almost no activity, unlike places in the U.S. with four seasons and a truly seasonal tourism industry?

Anonymous said...

The CNMI DOL has jurisdiction involving labor disputes with less than 15 employees or $500K in annual profits. That is the same for any worker local or foreign, and is true for all states. Immigration is completely a federal matter, and the CNMI has no authority to renew or give work permits after Nov. 28, 2009.

I would agree that tourism doesn't drop to 0 in the low season in the CNMI, however during the months of April, May, and June, the CNMI has considerably less visitor arrivals and many hotels experience 50% occupancy. Local High School students could work during the summer to supplement the H2-visa workforce. That is what many high school students do in resort cities. Most h2 visas are valid for 9 months. The tourist industry could actually save money by having 9 month contracts. You could actually even recruit the same worker to come back year after year. If federal visas are embraced, yes they can work.

Anonymous said...

Why does the U.S. DOL website say that both Federal and State laws have to be followed. If any of the laws conflict then Federal law should be followed. So as long as CNMI labor laws are not in conflict with Federal law or found unconstitutional it should be followed.

Wendy said...

Anonymous 2:15

Read the above comment, which clearly explains when DoL would have authority over a labor dispute.
Not over immigration functions.

What DoL is attempting to do is to take on duties that previously fell under the division of immigration such as registering aliens. They legally cannot do this! According to federal officials no alien needs to register with the DoL.