Turning a Blind Eye

January 23, 2011


It is a violation of federal law to require that CNMI employers hire U.S. citizens over legal nonresidents. Still there is a growing chorus of voices in the CNMI that endorses breaking federal employment law. The movement is gaining steam as it proceeds unopposed and unchallenged by U.S. officials.

Here is what federal law says regarding U.S. citizen job preference and job discrimination:
Title VII

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

National Origin Discrimination

It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.

A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA; verification must be obtained from all applicants and employees.

Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.

In his State of the Commonwealth letter, Governor Fitial said that efforts to get more U.S. citizens employed in the private sector will be one of his priorities:
"Getting more U.S. citizens employed in the private sector will be one of my highest priorities during this coming year. Previously, we lacked the data and the tools to achieve this objective. However, with the passage Public Law 17-1, we now have both. The law requires that all employers of guest workers must use the Job Vacancy Announcement (JVA) to ensure that qualified U.S. citizens are considered for the position before it is filled by a foreign worker. 
The revised labor law authorized the reorganization of the Department of Labor, which was completed in March 2010. The old Employment Services Division was split into two parts - the Job Availability Section and the Job Placement Section. The Job Availability Section has just completed its first job availability forecast, based on its identification of the number and types of jobs current held by foreign workers. With this information, the Department can now know exactly what jobs will become available, month-by-month, over the next 12 months. This information will allow citizens, and those who train them, to know what the job market will be months in advance. With this information, the Job Placement Section can better advise U.S. citizens what specific employers will have what kind of jobs available, on a monthly basis, for the next 12 months. It is the responsibility of the Job Placement Section to place citizens in jobs that become available when one year or two-year contracts with foreign workers come to an end. 
We believe this program deserves a technical assistance grant under the provisions of PL 110-229 that specifically address the Commonwealth's need to recruit, train, and hire more U.S. citizen workers in its economy and to gather data regarding the types of jobs needed and the skills needed to fulfill such jobs so that educational institutions in the CNMI can develop curricula for such job skills."
There are several problems with the Administration's plan.  The federal government regulates immigration and labor in the CNMI. USCIS stated that legal nonresidents with umbrella permits or parole in place status may remain and work in the CNMI until November 27, 2011. DOL and Fitial incorrectly state that when legal nonresident workers' contracts expire, then they must exit the CNMI.  This is not true. The legally recognized nonresident workers can remain with their current employers or be employed with another CNMI employer who hires them under Form I-91 CNMI. Even unemployed nonresidents with umbrella permits may remain in the CNMI at least until November 27, 2011 and continue to seek employment.

A recently released publication from USCISHandbook for Employers: Instructions for Completing Form I-9, states:
Q. As a CNMI employer, do I need to obtain CNMI DOL approval to hire an umbrella permit holder? 
A. No. Federal law does not require you to obtain CNMI DOL approval to hire an individual with an umbrella permit in the CNMI. Your new employee must fully complete Section 1 of the Form I-9 CNMI no later than the date that he or she begins work, and you must examine the employee’s documentation and complete Section 2 of the Form I-9 within three business days after the date the employee begins work.
Another problem is that DOL does not know how many "local" people are qualified to fill any positions that may actually open. They do not know how many residents want to accept a position in the private sector, which typically offers low pay and poor benefits.  They also do not know whether or not the legal foreign workers will be renewed by their employers, so they cannot realistically estimate how many jobs will be available even though Acting Labor Secretary Kaipat claims that 6,500 jobs will be available over the next to years.

Foreign workers and their employers are not required to report to or register with the local labor department, even though the DOL insists that they are.

In a recent letter to the editor Kaipat wrote:
"...the department is now focused on enforcement with respect to U.S. citizen employment rights. Every U.S. citizen in the commonwealth is entitled to job preference over any alien for any job for which that citizen is qualified. Enforcing this legal requirement is one of the department’s principal responsibilities under its reorganization, and more personnel have been devoted to this task. Our investigators are visiting employers and checking records with respect to compliance with commonwealth law. We are producing a month-by-month job availability forecast and focusing on every job in which an alien’s contract is expiring so that we can seek to fill that job with a citizen."
Again it is illegal for an employer to hire based on nationality. PL 17-1 contains provisions that are in conflict with federal law. Federal law preempts local law. The CNMI labor law needs to be challenged.

Fitial is asking for federal money "to gather data regarding the types of jobs needed and the skills needed to fulfill such jobs so that educational institutions in the CNMI can develop curricula for such job skills."  The CNMI DOL has consistently and arrogantly refused to share any employment data with federal officials.  Why should the administration be given a federal grant, if they cannot even share data?  No federal grant or assistance should be awarded to a program that promotes discrimination in employment practices, or to a local department that will use the grant to gather data unless it is specified that any data be shared with the federal government.

Other Voices in the Push to Hire "Locals"
Rep. Frederick Deleon Guerrero, who chairs the House Committee on Federal and Foreign Relations, met with DOL and Department of Commerce officials and others in a closed door meeting earlier this month to address, among other issues, the increasing unemployment rate among locals as government jobs are cut.

The lawmaker noted that there are jobs "held by nonresidents that need specialized training," and he suggested that "guest workers currently holding these jobs should be required to train U.S. citizens applying for such positions."

Is he suggesting that DOL tell the foreign workers that they cannot have their contracts renewed, but before they leave these foreign workers must train unskilled locals to replace them?  Any foreign worker with any self-respect will undoubtedly not buy into that plan.

Rep. Joseph Palacios stated that are an estimated 3,000 to 4,000 CNMI residents currently collecting food stamps, and suggested that they represent the number of unemployed in the CNMI.  That is not a meaningful statistic because it does not tell how many people collecting food stamps are eligible for work, how many want to be employed, and how many would work for the meager wages that most private sector jobs pay. There may also be unemployed in the CNMI who are not collecting food stamps. How many "locals" does DOL have registered with them and seeking employment? That should be the statistic that they may want to consider.

Another push for "local" hiring comes from Ramon B. Camacho, Saipan and Northern Islands Municipal Council Chair who wants companies that lease public land to hire "local" residents.  He is asking Oscar M. Babauta, the Secretary of Public Lands to help "secure jobs for unemployed local residents."  Camacho vowed to work with the CNMI Department of Labor.

Governor Fitial's State of the CNMI letter, the ongoing DOL announcements, and official statements that support breaking federal law are becoming more and more common place, and more and more tiresome. Why can't the U. S. Department of Justice or the U.S. Department of Labor challenge PL 17-1,  and put a stop to these constant announcements that support breaking federal law?

19 comments:

Anonymous said...

Employers don't have to hire non US Citizens either Wendy. They can hire whoever they want. If they feel that American workers should come first - then hire Americans. I agree. You also sound very much anti-American worker. But then again, you always have. I'm sure that you'll hear a long winded whine coming from guest workers in the future about not having a job. President Obama is doing the right thing by making it a PRIORITY to put AMERICANS back to work. No mention of non US Citizens.

Wendy said...

I am not anti-American. I am pro justice and support following the law. Those who say U.S. citizens have priority are telling employers to disobey federal law.

Anonymous said...

Discrimination based on alienage is illegal solely if the aliens have the unrestricted right to work in the United States.

All green card holders have that right, and therefor have a U.S. social security card that is unrestricted. A private employer can't discriminate against an alien lawful permanent resident.

Foreign National Workers admitted “temporarily” under the CNMI guest worker program do not have that right. Their U.S. social security cards state something like, “Not valid for work purposes.”

The new interpretation by USCIS published in the Employer Brochure released a few weeks ago and published in your blog tends to support the view that Umbrella Permit holders have the unrestricted right to work in the CNMI, though there has been no court case as to whether the CNMI's U.S. citizen-preference law continues to apply to them. Since that was a condition of their admittance, there is a good argument that it does so apply.

In any event, the big question is still what will happen after 28 November 2011 under the soon-to-be-released USCIS CW-visa regulations. Who will pay the fee? Employer or employee? I'm guessing “either,” meaning the employer for valuable employees that a well-funded business seeks to retain, and the employee when desperately looking for work from a marginal employer.

But the feds are trying to squeeze out marginal employers, so who knows? Will CW visa-holders have the unrestricted right to transfer, or will they require USCIS approval (similar to the CNMI DOL)? If there are unrestricted employee transfer rights, then likely the discrimination provisions will apply, too, and there will be no U.S. citizen preference.

But wasn't the whole point of the labor program and federalization so that the guest workers could “supplement” the local workforce, not supplant it? In that case, the U.S. citizen preference might remain, enforced by USCIS just like they do with H-2 visas -- requiring a showing of U.S. citizen unavailability.

But once a CW worker is hired, I doubt a U.S. citizen will be allowed to “displace” him or her if the citizen didn't apply when the job was initially announced. So the preference would be prospective only, at the time of hiring.

We'll have our answers when USCIS issues its regs. It's a bit too early to be giving “authoritative” advice on whether or not there will be a U.S. citizen preference versus CW-visa holders, and if so, to what extent.

The Saipan Blogger said...

We should be worried about unemployment overall, not just unemployment in certain classes. All of the contract workers with umbrella permits are in the CNMI legally. Remember, those umbrella permits were given out by the local government, not the federal government.

Anonymous said...

Foreign workers with umbrella permits have the right to WORK in the CNMI until November 2011. No employer can discriminate against them when hiring or firing.

Anonymous said...

12:25

Look at the old rule that was issued for hints of what the new rule will look like. No where in the US does the foreign employee pay a fee. No foreign employee in the CNMI will have to pay a fee to be hired.

The DOL is trying to break the laws that are in place now. Even without the transitional rule it is illegal to discriminate in hiring. The DHS handbook made that clear. The ombudsman made that clear.

Anonymous said...

What kind of company hires employees who can't speak, read or write the English language? How do they get a drivers license or talk to a doctor? How does a Chinese or Filipino national on Saipan who can't speak English get a license? Get with the times.

Anonymous said...

Those holding CW permits will have no restriction on their right to transfer. We don't need to wait for the regulations, because that's in the CNRA.

Anonymous said...

9:32 Are you serious? Filipinos speak perfect English and the Chinese workers who have been in the CNMI for years speak good English too.

Anonymous said...

Most Filipinos speak and write English as well or better than most other ethnicities here. Including the indigenous ones.

Anonymous said...

9:32 do you need to talk English while driving? when you drive keep your mouth shut. Experienced drivers are better than talkative drivers. I am sure you cannot drive in Phil or China because their roads are busier than here.

Anonymous said...

Anon 8:13 said, "Those holding CW permits will have no restriction on their right to transfer. We don't need to wait for the regulations, because that's in the CNRA".

People seemed confused on what the regulations are about. The regulations are for a CW Transitional Worker visa to give non-resident employees a right to live and work in the CNMI. The regs will most likely have a U.S. citizen preference like all U.S. visas. Employers will be responsible for the visa fee itself, but legal fees, health screens, and health insurance will be the responsibility of the employee. One of the biggest abuses of the CNMI labor system is the payment of medical costs. Many employers threatened termination or non-renewal for people that requested health care reimbursement. Starting soon, for those under the CW visa, health coverage will be the responsibility of the worker.

Captain said...

8:12 I think the point being that a person who drives needs to be able to read and understand the traffic rules and regulations and also understand the direction of the cops.
Years ago the drivers license applicants were allowed to have translators when taking the drivers test.
One of the reasons for discontinuing this, was for the aforementioned.

In regards to driving in the Phil. You are correct that the roads are very much more congested.
It is also true, according to the Manila times and Phil Star other periodic articles, that the Filipino drivers in the Phil. are THE WORST drivers in the whole world.
I spend much time in the Phil. (I am presently there now)
I presently drive every morning, departing at 5 am, in the dark, 65 Kilometers to the Hospital.
So many people walking on the roads or on bicycle wearing black.
You have the pedicabs, the tricycles, motorcycles, and the Jitneys most all driving without lights.
Many coming down the wrong side of the road (or just park there in the dark) or coming from side street directly in front of you without looking. No one seems to understand who has the right of way.
The Jitney's are the worst. They also always park on the blind curve or not pull off to the side to load passengers. And passengers jump off and just step in front of the oncoming cars.(many killed every week)
Nobody uses signals, many hold up traffic doing 20 kph. in 100kph highways.
The tricycle drivers, most do not have any license and many are not even old enough to drive.
Nobody seems to know any traffic rules.
BTW the large trucks (although bad drivers)all have operational lights as they usually come out of Manila where on the EDSA the traffic rules for are strictly enforced on ALL.

As far as English being spoken fluently, many do speak well,but so many do not also, especially the ones hired from the province with no education..
I have received in the past many that did not comprehend English. And also many more that did not have the skills they were hired for.
Many I sent back as it was not cost effective to keep them.
The English is important for safety reason on construction job sites.
The main reason why so many Filipino are "deployed" all around the world (vs other nationalities) is because of the majority of them DO speak the English language.
In some cases the ones that really do not have the high caliber of skills that they stated on hire, at least can be further trained because of the language comprehension.
JFYI, there are over 1.8 mil. Filipino employed in Saudi Arabia alone, and also are the most abused of in any other nation.

Anonymous said...

Good riddance to that driving school. What 2 and 3 lane place with less than 60,000 should have a several hundred dollar per student school? Absurd.

Anonymous said...

Captain, you drive so fast and beyond the issue. 9:32 said that many of them don't "speak" not read or understand. Even here many locals just cross the street without looking and think they own the road, many local drivers just proceed (or scream at you) & hit you (i know) if an alien will just cross as above. As long as you can read, understand and have experience then you passed the test, speaking is hard for everybody it it is not their tongue.

Anonymous said...

You are not required to hire a non-resident worker, you just can't discrimate because of that. Before I could say "Sorry, you are a contract worker and we don't hire CW's for this type of job". I cannot say that now. However, I can tell if someone is a contract worker or not without asking them a question. Try and prove that I did not hire them because of their status. Do you see a CW filing an EEOC suit over this? Maybe. Again, Prove it.

Anonymous said...

12:35pm I pity on you

Anonymous said...

It's easy to prove. If you don't get a job, and you check to see who got the job, and you are more qualified, and you challenge their hiring on that basis - - guess what? you win.

Anonymous said...

da feds have no interest in us. they just want to protect guam. saipan-tinian-rota be damned.