‘Minor delay in filing transfer applications excusable’

Minor delays in filing of transfer applications, particularly where the worker is not at fault, should be excused, according to Department of Labor administrative hearing officer Jerry Cody.

Cody agreed with Labor’s recommendation in prior cases that transfer applications filed late by only a few days should be processed, provided that a monetary sanction is paid.

Cody issued the statement in reversing the Labor director’s decision denying the application by Securewest International Inc. to employ Artemio P. Habal Jr. as a security guard.

The hearing officer instructed Labor to process the application provided that Securewest pays the $150 sanction within 10 days.

If Securewest fails to pay the saction on time, the work permit for Habal shall be revocated and the company shall be subject to further sanctions, Cody said.

Labor records show that Habal was formerly employed under a nonresident work permit that expired on May 26, 2005. The 45-day deadline to submit a transfer application was July 8, 2005.

On July 15, 2005, Securewest filed a transfer application to employ Habal as a security guard. On Oct. 26, 2005, Labor denied the application as “untimely filed.”

Securewest and Habal appealed.

According to the appellants’ testimony, Habal applied to work at Securewest on June 24, 2005. The company directed him to take a written examination.

At that time, Habal told the employer that he had a transfer deadline on July 8, 2005, and he needed to have his employment application filed with Labor by that date.

Securewest decided to hire Habal on July 7, 2005—one day before the transfer deadline.

The company would have filed the application on July 11, 2005; however, its Saipan offices needed to receive funds from its Guam office to pay for the application fees. It took the Guam office several days to send the money, which delayed the application.

As soon as the Saipan office received funds for the transfer, the company filed the transfer application. The filing was seven days late.

The Labor director recommended that the denial of the application be affirmed, but that if the hearing officer was inclined to grant discretionary relief, the employer should be sanctioned $350 for the late filing.

Cody said the hearing office has discretionary power to excuse the parties’ failure to meet a transfer deadline “where the facts and circumstances make it fair and just to do so.”

Such extensions, Cody said, are appropriate where the filing deadline was missed entirely through the fault of the employer; where the employee had no control over events that occurred; or where the deadline was missed by a matter of only days or weeks.

Cody said Habal made a good faith effort and found a potential transfer employer weeks before the transfer period expired.

Cody said Habal alerted the potential employer that he had a transfer deadline and that Securewest needed to make a hiring decision prior to the deadline.

Cody said the delay was caused by the employer, as it failed to take prompt steps to file the application since it had made the hiring decision.

The department’s recommendation to affirm the denial is contrary to its position in many prior cases, the hearing officer noted.

The late filing was the fault of the employer and the tardiness in filing was minor, he said.

“Furthermore, such a delay could not have been foreseen or prevented by the worker. It would be unduly harsh to order this worker to depart the CNMI based on these facts,” he added.