Labor sanctions Rota employer for late filing

An employer on Rota who has relocated to the U.S. mainland has been sanctioned by the Department of Labor for his late filing of a transfer application for a houseworker.

Labor administrative hearing officer Jerry Cody ordered Matthew A. Ooka to pay $200 to the CNMI Treasury.

“I find that the $200 is an appropriate sanction, as that amount has been assessed in similar cases of late-filed applications,” Cody said in his order.

The hearing officer, however, reversed the Labor director’s decision that denied Ooka’s application to employ Cresencio B. Gonsay as houseworker.

He said the permit to be issued to Gonsay shall expire on May 17, 2006—exactly one year after the issuance of the conditional grant of transfer to Ooka and Gonsay.

Cody directed Labor to resume processing the application as soon as possible, provided that the employer complies with the terms of the order.

Labor papers show that Gonsay previously worked under a nonresident work permit that expired on March 1, 2005. She was allowed 45 days to secure a transfer employer.

The deadline to file the transfer application was April 15, 2005. Ooka filed a transfer application to employ Gonsay as a houseworker on May 13, 2005—28 days after the deadline. Labor denied the application on the grounds that it was late.

Ooka and Gonsay appealed.

Cody said the evidence shows that Gonsay found this employer [Ooka], who agreed to hire her as a houseworker in mid-April 2005, around the time the transfer period expired.

However, Ooka did not file the application until May 13, 2005. Ooka’s wife testified that the application was filed late because it took her time to prepare the necessary paperwork.

On May 17, 2005, then Rota Labor acting resident director Miranda Manglona approved a conditional grant of transfer that enabled the parties to commence their employment relationship.

Gonsay has worked for the Ooka household under a conditional grant of transfer for the past nine months without incident.

Ooka is now medically retired and has relocated to the U.S. mainland. The wife plans to join her husband sometime in May 2006. The wife testified that she would like to continue employing the houseworker until the end of the contract period, which expires on May 17, 2006.

At the hearing, Labor recommended that the denial be reversed and the parties allowed to complete the employment term, provided that the employer is sanctioned in an amount to be determined by the hearing officer.

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

“Such extensions 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.

In this case, he noted that Gonsay made a good faith effort and evidently found an employer around the time that the transfer deadline expired.

Ooka agreed to hire the worker but took about a month to prepare and file a complete transfer application.

Although Ooka failed to meet the deadline, his failure to do so was not willful, Cody said.

Furthermore, Cody said, Labor now recommends that the prior denial of this app
lication be reversed.

“This case presents unusual facts in that these parties were allowed to commence the employment and the worker has already worked nine months of this 12-month contract without incident,” he said.

“Putting aside whether it was proper for the resident director at the time to grant a conditional grant of transfer, the fact is that the one-year employment period covered by this permit has been nearly completed,” Cody said.

At this point, Cody said, after nine months of authorized employment, it would serve no useful purpose and would be unduly harsh to order the worker to depart the CNMI as a result of the prior untimely filing of the application.