Labor accused of violating due process

The Department of Labor was accused of violating the due process rights of an employer and its employees after the agency suspended the processing of work permit applications submitted by a company.

Attorney Stephen C. Woodruff, on behalf of Sun Mei Corp. and three employees, questioned the authority of the Labor Department to suspend processing applications.

Labor director Dean O. Tenorio did so in an April 1, 2005 memorandum, in which he requested Labor processing supervisor James M. Ulloa to “pend” applications filed by Sun Mei.

Tenorio noted that the Labor Compliance Section had opened an agency case against Sun Mei based on allegations made by some of the company’s employees regarding unpaid wages, application fees, and possibly unauthorized employment.

Citing a provision in the Alien Labor Rules and Regulations, Tenorio asked the Processing Section “not to process, issue, or approve any new or replacement applications for Sun Mei pending the resolution of this case.”

However, Woodruff maintained that Tenorio’s memorandum misapplied and misinterpreted the cited regulation.

The provision reads: “If a compliance agency (which is a case brought by the Compliance Section), labor or agency case has been opened regarding any employer, the Director of Labor may refuse to approve applications for the employer during the pendency of the case.”

Woodruff argued, “The purported regulation only authorizes the director to ‘refuse to approve’ (i.e. deny) applications. It says nothing about suspending processing or holding applications in indefinite abeyance without notice and opportunity to be heard.”

The attorney noted that Sun Mei Corp. never learned about the memorandum or any of the five compliance agencies purportedly opened against the company until May 26.

On that day, a hearing was held on the appeal filed by the company against Labor. The appeal stemmed from the agency’s denial of the applications submitted by the company for workers Li Fei Feng, Hong Xiao Ye, and Cai Zhi Song.

Further, Woodruff said, a separate memorandum filed by the department’s counsel regarding the case cited “not even one adverse determination, pending adjudication, or decision by the [Labor] hearing office against the company.”

“In short, the department’s memorandum is long on conjecture, assumption, and prejudice against Sun Mei Corporation and short on substance, fact, or evidence to justify any kind of adverse action against the company,” Woodruff said.

Hence, he said, the Hearing Office should reverse the denials of Sun Mei’s applications and instruct the department to decide each and every applications individually on its merits.