Will CNMI Foreign Worker Abuses Continue Under the Federal System?

September 23, 2011

Rota Hotel workers protested wage theft to officials and to the public.

In a few weeks I will meet up with Rabby Syed in Washington, DC. to visit federal officials, NGOs and members of the national press.

I am working on preparing a packet of letters and emails from the foreign workers. If you would like to voice an opinion or make a suggestion on the federal guest worker program or status; relay how PL 110-229 and/or the CW rule impact you and your family; or have an opinion that you would like to be conveyed to officials please email me at doromal@earthlink.net . I will add your message to the ones I have already compiled. Foreign workers can disclose their names and contact information or remain anonymous.

I am also working on addressing the persistent problem of wage theft. If you are currently a victim of wage theft (unpaid wages, delayed wages, unpaid overtime or illegal deductions), you have filed a complaint that remains unresolved, and have not already emailed me with details of your plight, you can email me until October 7th. I will share your case with interested parties and officials in Washington, DC. (Again, if you wish, I will remove identifying information.)

The problem with the former CNMI and the present federal guest worker programs is that because foreign workers under both programs are viewed as replaceable and disposable labor units rather than as future citizens with equal rights, they become much more susceptible to abuses. Sadly, recruitment scams, human trafficking and wage theft continue today under the federal system.

There have been many comments in recent blog posts concerning unpaid wages and wage theft. Several commenters attempt to blame victims for the problem, make excuses for the problem, or dismiss the problem as insignificant. Still others have made excellent points.

Several commenters accurately pointed out that no one can help a victim of wage theft unless that person reports it. Of course, it is better to report nonpayment of wages immediately rather than to believe an employer who attempts to convince an employee that it is in their best interest to remain silent and wait until the employer comes up with the pay. Employers who rob wages from their employees are violating the law and cannot be trusted. Employers who threaten employees with termination if they report abuses are in violation of the law and cannot be trusted. It is unwise to believe that someday these unscrupulous employers will come up with the wages. That is extremely unlikely. The sooner the violation is reported, the greater the chances of collecting back wages.

It was also pointed out that by waiting to report violations, employees risk that the business or employer may declare bankruptcy, thus limiting or preventing employees' ability to collect what is owed to them. I am not familiar with such cases, but I have seen cases where employers declare bankruptcy after a complaint is filed to get out of their responsibility of paying the wages to the victim-employees. Why risk this happening? If an employee is not being paid, reporting it is the best move.

In defense of foreign workers who state that complaining to local or federal agencies does not help them get justice, I have to say that I also have seen no resolution in recent cases that I have been monitoring. Wage theft of employees of the Tinian Dynasty, the Rota Hotel, Saipan Ice and Water, and the CNMI nurses who work at CNMI government hospitals was reported to local and federal agencies months and even more than a year ago. Employees have followed up with agencies and officials, as documentation that they sent to me shows. Still, they have seen no action on their cases, they remain unpaid and the problems continue unresolved. It is exactly examples like these that make foreign workers question whether they should hang on to hollow promises and the possibility of keeping a much-needed job that in their mind may improve, or file a complaint to possibly recover their back wages, knowing that few of their fellow foreign workers ever receive the back wages and even fewer of the crook-employers are prosecuted.  The CNMI and U.S. officials and agencies who have received complaints concerning these employers should explain what is causing the delay in resolving these cases. If there are kinks in the system, they need to be immediately corrected to ensure justice for the victim-employees.

It will be interesting to see what requirements USCIS enforces in declaring a business as "legitimate". Will businesses or employers who participate openly in wage theft and who have formal complaints filed against them with federal agencies or offices such as the Federal Ombudsman Office and U.S. Department of Labor be eligible to hire foreign workers under the CW program? The rule states that only employees engaged in a "legitimate" business may file CW applications. I would say that these businesses are not legitimate because they are engaged in illegal practices. I would like the USCIS to state definitively whether or not businesses that owe foreign workers back wages can apply for any federal visa to employ foreign workers. The current foreign employees should know if these businesses will be allowed to apply for a CW visa for them or if they should seek employment elsewhere. To allow offending  businesses to employ foreign workers would be perceived as a statement that the federal government condones wage theft and labor violations.

U.S. citizen or permanent resident employees feel free to quit a job when they are ill-treated or experience wage theft, knowing that they are free to search for another job in the CNMI and are also free to travel to the mainland or Guam to find employment. On the other hand, foreign workers are more often abused because they do not have equal rights and they are prohibited from traveling to other U.S. locations to seek employment. Additionally, unlike U.S. citizens or permanent residents, they are subject to repatriation to their homelands when their employment is terminated, making it far less likely that labor or criminal cases will be pursued and justice will be served.

Not only are U.S. citizen and permanent resident employees free to pursue any claims, most of them also have a social network of family on island to provide financial and emotional support. Conversely, foreign workers have a much smaller or no support system at all in the CNMI. Foreign workers, especially those who are not receiving their wages, also lack the money to hire attorneys.  Employers know this. Unscrupulous employers have routinely gotten away with criminal theft under the CNMI system, and they get away with it under the U.S. system unless comprehensive changes are made to ensure protections to foreign workers and aggressive prosecution of criminal employers is enforced.

Foreign workers are also at a great disadvantage because after paying out thousands in recruitment fees, moving a great distance, and putting hope into landing a job that will pay good wages and benefit them and their family, they are far less likely to just walk away and risk losing everything. That is a major reason that they tolerate abuses, accept employer excuses and take what little pay is thrown their way instead of choosing to immediately filing formal complaints with appropriate agencies. They opt to hang on hoping for a chance to repay debts and support themselves in a kind of survival mode. Employers know this and they took advantage of this fact under the dysfunctional CNMI guest worker system. They will continue to take advantage of this under the federal CNMI guest worker program unless changes are enacted to prevent this pattern.

It appears that the local and federal government agencies responsible for enforcing laws and ensuring safety and protection are incapable of fulfilling these duties in a timely manner or at all, as $6.1 in documented unpaid wages attests. In the case of the failure of local labor or law enforcement agencies to prosecute abusers we know that politics and family ties have interfered with justice. In the case of federal agencies we need to identify exactly what the problems are. Are reported cases not being pursued because of lack of personnel on the ground in the CNMI; lack of initiative to follow-up and investigate; lack of resources; distance of the CNMI from federal agencies that are investigating cases from afar; denial or a lack of knowledge of the history and extent of current abuses; or a lack of urgency in investigating and prosecuting cases to ensure justice? Should federal agencies be taking a proactive stance in checking businesses and employers of foreign workers to ensure compliance instead of waiting for hesitant foreign employees to report abuses? Federal officials and lawmakers must identify the problems and address them. 

All federal agencies in the CNMI should be properly funded and staffed so effective law enforcement is not stalled or prohibited because of lack of funds or personnel to pursue cases. These include the U.S. Department of Justice, the F.B.I., the Federal Ombudsman Office, the U.S. Department of Labor and the USCIS.

As long as legal foreign workers are viewed as labor units who are denied of social, political and economic rights, they will continue to be abused.  As long as they are considered replaceable or disposable, it will not matter whether the system is under local or federal control; the abuses will continue. In written testimony submitted to the The House Committee on Natural Resources Subcommittee on Insular Affairs, Oceans and Wildlife for a May 19, 2009 hearing I wrote:
Currently, regulations for a transitional federal guest worker program are being drafted. It will not be enough to merely change the name of the guest worker program from the CNMI guest worker program to the federal guest worker program. The program must be totally revamped to ensure that unjust policies and regulations that have plagued the current local system are eliminated within the new federal program. The existing system is based on an economic model that steals labor. It is the closest system to slavery allowed to flourish under the American flag since 1864 and it is un-American. 
The CNMI government is not asking the federal government to fix this broken system, but to endorse and continue it. They have fought to hang on to this system for decades by hiring lobbyists to block legislation, and more recently by filing a federal lawsuit in the U.S. District Court of the District of Columbia to block the implementation of PL 110-229. The federal transitional guest worker program must reflect democratic and constitutional principles that are lacking in the current local system. A just guest worker program requires ongoing oversight, adequately trained and staffed offices, and strict enforcement of all labor and immigration laws. The current CNMI program stands as a barrier to social justice and economic prosperity. . . 
. . .Corruption bears a human cost. It bears a financial cost for taxpayers. It bears a moral cost for our country. We cannot allow even a shadow of this unjust system to continue. We must infuse the basic American values of civil and human rights, due process, and fairness for all into the federal program. At this time there is an opportunity to create a transitional federal guest worker program that could serve as an exemplary model for the entire nation as we move forward to enact comprehensive immigration reform legislation. As the Congress considers granting permanent status to illegal aliens in the U.S. mainland, how can they deny the legal nonresident workers of the CNMI the same consideration? The time to grant them status is long overdue.

An important intent of the CNRA was to bring the CNMI immigration policies into conformity with the policies applicable to the rest of the United States. Thus, those foreign workers legally admitted into the United States to work, whether in the U.S. mainland or the CNMI, should be provided with a pathway to become U.S. citizens with full political and social rights. Foreigners invited to our shores to work and build our economy should be regarded as future citizens rather than replaceable commodities. . .

. . . A just and democratic federal guest worker program that regards long-term foreign workers as future citizens will benefit all who live and work in the CNMI. The current CNMI Administration has argued that PL 110-229 will leave the Commonwealth without the workforce needed to ensure economic success. However, by granting the long-term foreign workers in the CNMI a pathway to citizenship, a skilled and loyal workforce will be available.
Maintaining a guest worker program is not an easy task anywhere and it is especially difficult when it is thousands of miles from Washington, DC.  Maintaining a CNMI federal guest worker program is extremely costly to the federal taxpayers. What needs to be done to ensure that foreign workers in the CNMI are treated justly? There is a solution that will serve all. The CNMI officials claim that they must have foreign workers to ensure a stable and skilled workforce. That workforce is in the CNMI now. It has been there for years and decades. The legal, long-term foreign workers are fighting to maintain stability within their lives and the lives of their families and children.  The U.S. Congress should act immediately to grant the legal, long-term foreign resident workers permanent residency. If that is done any foreign worker program that is needed will be minimal in size and cost and can easily be monitored for abuses.


Anonymous said...

For over 17 years, since Elton Gallegly introduced the first bill dealing with the subject, people have used the ongoing labor abuses as a justification for federalizing immigration and the minimum wage in the CNMI.

I repeated over and over that these would have no direct effect on the abuses, that the abuses were violations of federal law that have applied in the CNMI since 9 January 1978.

What is needed is greater resources toward enforcement of federal law that has been largely ignored for 33 years.

It is good that people are finally waking up to this reality.

Wendy Doromal said...

Anonymous 5:04

It's interesting that you say that. One of the first letters I ever wrote on this issue was addressed to Rep. Elton Galleghly. It requested more funds for federal agencies to increase staff and enforce laws in the CNMI. But that alone won't correct the problem. In any guest worker program there has to be a provision for the legal long-term (5 or more years) foreign workers to be granted permanent residency status. People are not labor units and should always be viewed as future citizens to be respected and valued. As long as they remain disposable, they will be subject to abuses.

It's not your money! said...

Great post, Wendy!

One problem in relying on the feds to do the enforcement is that the system has always been set up under the assumption that the State government would be the primary enforcer of wage laws. US Labor has
"enterprise coverage" limits that prevent it from enforcing minimum wage law against businesses that do not do at least $500,000 in business annually. Unless the workers in smaller businesses have individual coverage because they order business-related supplied from off-island, or swipe credit cards for payments, or have other job-related duties that require them to affect interstate commerce (or if they are certain types of workers, such as domestics), USDOL can't touch them.

This is not an insurmountable problem. It requires a cooperative relationship between local and federal enforcement personnel, such as the CNMI had during the Babauta Administration. Although we still had problems under Babauta, he and his AG, Pam Brown, were moving us in the right direction. Once Fitial got elected, all of that ended. He brought in AG's more interested in hanging on to their jobs than in accomplishing anything, and the tone he set was one of confrontation, not cooperation. His has also been the most corrupt administration in the CNMI's history. If his cronies weren't directly participating in scams to cheat workers, taking money on the side to look the other way, or consumed by nativist hatred of aliens, they were so unqualified to do their jobs that the scammers easily did end runs around them.

You are certainly right that the enforcement budget needs to be beefed up, and to that end, Interior funded an additional AUSA, USDOL Wage-Hour investigator, and FBI agent, specifically to help out with transition period enforcement. It would be helpful if the Congress could expand the Labor, Immigration and Law Enforcement Initiative to expand on this enforcement presence in the years to come. The Congress should also pass an amendment to the Fair Labor Standards Act (FLSA) reducing enterprise coverage in the CNMI to only $100,000 during the transition period or any extension of it.

Wendy Doromal said...

It's Not Your Money

Thank you for a great comment! You are absolutely correct. I am going to add your suggestion concerning the FLSA enterprise coverage to my own when I visit officials next month. It is brilliant and could really solve many problems.

Anonymous said...

Yes Wendy it will continue under Federal control. Why did you think otherwise?

Anonymous said...

One of the problems the Feds will have in issuing work permits to existing companies and identifying those with past labor abuse cases is the fact the the CNMI refuses to share information from the DOL computers.
If the Feds could be given access to the listed employers that are in the $6mil owed to the employees maybe that will be a start.

As far as "enterprise coverage limits", my own personal observation is that lowering the limit to $100k, although a start, would not affect the average small company that practice the majority of labor abuses.
Many of these small employers are the one that cannot afford workers and do not pay them.
House workers farmers, maritime and small time tour workers are the highest number abused, along with the small construction and trucking companies that spring up to get sole sourced contracts from family in the Govt. especially when it falls under the amount that require the project to go out for bid.
There are so many holes that will allow for further abuses within these new regs. Hopefully they can be closed withing the first year.
Hopefully also that there will be some kind of aggressive enforcement of labor violations upcoming.

the teacher said...

Yes, the above comment is correct but not new and isn't likely to change soon. Many small businesses here are owned by foreign nationals and they do not follow a US model of labor policies or regulations. As long as these businesses are allowed to operate here, labor abuse and non-payment issues will continue. As long as alien workers consider their job as protection from removal, it will thrive. It is sad to here people unpaid for a year but US citizens wouldn't likely work one year or even a month without pay, so as long as we have persons willing to be abused, sleazy employers will exploit the niche.

We had 550 CNMI investor visas and 18 (THATS ONLY EIGHTEEN) have qualified for E-2 visas and there are ZERO US investment visa holders in the CNMI, so there aren't going to be many jobs here...to think 16k is foolishness and 5k would surprise me, 2 or 3k wouldn't. The US investor visa laws were clear that no businesses may operate past 2014 with the US investor visa and that it may not be extended even if the transition period is extended.

Anonymous said...

The US Federal Government has finally destroyed the CNMI. Congratulations. This is total vindication for Pelosi, Stayman and Miller (a few others as well). This was the goal. Implement Federal Immigration law to shake down the local system. Guest workers were better off before - prove me wrong.

Anonymous said...

you are right most of these violaters have been operating with the wink and nod from the local government. As to the Ombudsman, isn't she a former AG?? How many of these labor cases did she prosecute during her tenure?? I hear she has umbrella permit holders who are working for her federal office? Are there no USC citizens or green card holders who can work as translaters and case workers?? I am interested if she will petition for foreign workers and attest under oath that there are no USC, green card holders who can do that job, I am sure DOJ and DHS is interested too. Many labor cases are against companies who left the CNMI years ago and / or went bankrupted. It is settled case law in the U.S. having a pending labor case is not grounds to stay here and not be deported. USCIS Gulik has already said that here on Saipan that they can go home and the lawyers can fight their case while they are overseas. We need to sweep house of all the governtment people who were around during the abuses as well as those who no longer work for the government but have moved on to other areaas where they are still involved to include the glut of attorneys and even Ms Brown, we need fresh untainted people here taking care of the problems,,, those who truly care about cleaning up this island cannot disagree with that....

Anonymous said...

If you have enough money (Russians) you can stay and work as long as you want anywhere in the US and CNMI. You can even bring your entire extended family over AND get Green Cards with a red carpet pathway to US Citizenship. IF you have the cash. The Fed lobbyists were warned about this a long time ago but did not listen. Why would the US grant anything to thousands of non US Citizens who have less than $200 in the bank?

Anonymous said...

Teacher, not all foreign investors are bad and most contribute to the economy here, provide services or goods to the community, and pay their workers on time. The NMI lured them and they have NMI business licenses and permits. If they aren't following laws, then the owners should be prosecuted as suggested in this article. If you know some violators then turn them in, but don't make generalizations. You have attacked the foreign businesses for a year or so saying they all have to go. You may get your wish, teacher. Most of our small business owners will be forced out. This will be the final blow to the NMI. These businesses pay taxes and fuel our economy. Will you stay in the NMI when it has no businesses and no workers for hotels and restaurants? When it is a real ghost town?

Anonymous said...

I totally agree Mam Wendy,

we are still disposable so we are still subject to abuse.

Wendy Doromal said...

Anonymous 11:41
You obviously have a personal grudge against the ombudsman, just as 11:35 has a grudge against the Democrats he rattles off ever so often in attacks on this blog. Why don’t you ask her what she did as AG? I am not that familiar with her work as AG, but I know that she worked to reform labor and immigration, got federal funding to hire more attorneys and investigators at DOL, got La Mode to pay workers back wages, worked (and still works) to stop human trafficking, and established laws to prevent recruitment fraud.

The ombudsman will follow the laws in hiring foreign workers, just as most businesses will. The ombudsman office pays their workers, unlike some CNMI agencies such as the Commonwealth Health Center. The law states that businesses and employers must advertise positions to give U.S. citizens the opportunity to apply. It does not state that the job has to be filled by any applying U.S. citizen. An alien can be hired if he/she is more qualified or experienced. That is the law.

Forcing legitimate victims (and there has been a very minimal number of so-called frivolous labor cases actually filed) to leave the CNMI while their cases are pending is unjust. It puts victims at a great disadvantage and it is unlikely that they will be able to pursue cases from a far.

The MV quoted David Gulick as saying: “Asked if USCIS can extend a nonresident’s parole-in-place so he can continue to remain on island legally while pursuing his uncollected salaries, Gulick said the parole-in-place is for somebody who does not have an umbrella permit, which expires on Nov. 27. After Nov 27 it’s going to be available on a case-by-case basis whether or not exceptional humanitarian factors are involved,” he said. Ordinarily, he added, pursuing a civil claim does not require the physical presence of a nonresident. “We have not traditionally said that’s the reason to remain [here]. You can go home and if you need to come back we will assist in getting you back for your court appearance.”

How can a victim prepare a case with an attorney if they are in another country? I certainly consider theft a CRIMINAL case, not a civil case, so I guess these people who are victims of wage theft should be allowed to stay to pursue their cases. If an employee steals from an employer, it is a criminal case, so it must also be a criminal case if an employer steals from an employee. If not, this needs to be revised! Regardless, why should taxpayers carry the burden of extra flights? I am sure there will be kinks ironed out in the CW rule as the year progresses. The delay in issuing the CW rule sure has created confusion, urgency and unneeded stress for employees and employers. A needless waste resulting from a truly frivolous lawsuit filed by the governor and his pals.

the teacher said...

Noni 7:15, I don't think all foreign businesses are bad, but the NMI is dominated by businesses owned by aliens. They are the source of almost all labor abuse here, they are prime examples of non-payment and exploitation(meaning they exploit the "hire me I need a fake job for immigration purposes even if I don't get paid....I will only file the case after you fire me" employees)they generally don't hire US citizens, they move a high percentage of their income abroad, I would question their tax benifit to the NMI, and they aren't making long term investment or commitments in the NMI.

The US has investor visa laws for a valid economic reasons. Most other industrialized nations have similar or harsher policies than the US.

In New Caladonia for example, guest workers earn 20. per hr in mines, and while it is pricey to live there, they have a high standard of living. Investors are welcome but they must pay for such a high quality of life. If we allow anyone that paid 100. to the NMI business office operate here we would be modeling an economy that resembles some of our poor impoverished neighbors, and that would be a shameful direction for an American island to head.

[1 of 2] Green Cards for All! said...

It's not your money! said...

The Congress should also pass an amendment to the Fair Labor Standards Act (FLSA) reducing enterprise coverage in the CNMI to only $100,000 during the transition period or any extension of it.

Hear, hear!

This is an outstanding suggestion! Such a fix could easily be introduced by Kilili as an amendment to CNRA, and would go far in bringing resources to bear on the unpaid worker situations pervasive throughout the CNMI.

May I hear $50,000? (!)

This proposal should be enthusiastically adopted by all those truly concerned with the plight of CNMI workers and placed on a fast track.

As for the DoI initiative funding of a few positions, it was too little, too late. More positions were needed, and they should be part of the intrinsic budget of the affected agencies -- DoL, DoJ, and the FBI. But it is not too late to expand the number of funded positions, which would also provide a [very] slight increase in federal funds to the CNMI economy.

Ultimately, the CNMI needs its own U.S. Attorney, a go-getter like Jim Benedetto, Rob Torres, or Eric O'Malley. Not someone far more concerned with Guam issues such as Alicia A.G. Limtiaco.

She is beholden to Del. Bordallo, who removed the Green Card provision from the CNRA -- not Gov. Fitial as is so often erroneously attributed to him; he had and has no such power.

It's not your money! said...

Once Fitial got elected, all of that ended. He brought in AG's more interested in hanging on to their jobs than in accomplishing anything, and the tone he set was one of confrontation, not cooperation.

Here is where I'll have to disagree with you, friend. AAGs Dede Hill (hired under Pamela Sue Brown), Eleanor Nisperos, and Eli Golob all worked heroically under Fitial's AGs to address the pervasive labor abuses.

Recall that the CNMI government budget peaked at around $250M in 2005, fell to the high $190M neighborhood in Fitial's first year, and is now diving below the $100M level. The number of lawyers at the OAG fell from 30 to 20 or so within about a year. No matter how well-intentioned (and I have no doubt about the sincerity of Hill, E. Nisperos, and Golob), it would be impossible to accomplish all that is needed with such limited resources.

Unlike AG Brown, who served under Babauta who thought the economy was "pretty darn good" and spent accordingly, including munificent spending on young, eager lawyers, Fitial did not have the money to spend, and recognized that.

Gregory, Baka, and Buckingham were engaged in legal triage ever since.

Sure, Fitial escalated the level of CNMI-US confrontation, Exhibit A being the anti-CNRA lawsuit. Yet local governments sue the U.S. hundreds or thousands of times annually, and most officials are professional in their reactions to such lawsuits.

Unfortunately, David Barrett Cohen lacked such professionalism, and engaged in the spiteful, vindictive tactics of Allen P. Stayman and George Miller.

Particularly, Cohen inserted outright lies about the OAG being under the thumb of the People's Republic of China into the Congressional Record. He impugned the integrity of the Office of Refugee Protection and its hardworking Admin. Protection Judges Arin Greenwood and Dana Emery; breaching quasi-judicial independence by trying to improperly influence the decisions of those officials who were funded from his agency. Needless to say, such interference did not increase cooperation by the OAG.

Reasonable minds can differ on the causes of the CNMI's current economic straits following the closure of garment factories (congressional refusal to reduce CNMI-content requirement from 50% to 30%), withdrawal of JAL and CO, anticipated federalization of wages and immigration, CNMI retention of Abramoff and Democratic pay-back, and endemic issues of corruption and land ownership.

But there is no gainsaying the extraordinarily limited resources available to the CNMI government for labor enforcement at this point.

[2 of 2] Green Cards for All! said...

That is why the proposal to reduce FLSA enterprise coverage in the CNMI to $100,000 (or $50,000) during the transition period and any extension is something that all of us should agree upon, Republicans and Democrats alike.

Anonymous said...

Former AG Brown is not without her skeletons. Remember Water Task Force contracts? Oh snap! BTW, how many CWs work for SeaFix?

Anonymous said...

Most truthful comment from the Mariana Variety:
"Job vacancy announcement for hard working applicant. Must be willing to work sporadic hours and pay; tolerate abusive language and occassionally ethnic slurs from clients and employer;willing to work under stressful environment and situations including but not exclusive to possible sexual harassament/abuse and humiliation; unannounced personal belonging searches; and minimal availability of proper work equipment to ensure safety; maybe required to perform duties and tasks that are outside/beyond the scope of the initial job description without demanding compensation or leniency; willing without resistance to provide access to savings/checking accounts as needed by employer; and submission of signed document that employer has provided necessary means to make working in the CNMI pleasurable and will not file against them at the Dept. of Labor even with substantial evidence. Open to only US citizens and permanent residents. Preference will be given to indigenous residents not currently serving time in a correctional facility. Indigenous residents with political relatives do not need to fill out an application, just call us...you're HIRED!"