‘Transfer issue ambiguous in labor cases filed with federal agencies’

A Department of Labor hearing officer has cited difficulties in deciding on transfer requests made by alien workers involved in federal cases or investigations.

In an April 22 administrative order, hearing officer Jerry Cody noted that Labor rules and regulations provide clear guidelines for granting or denying transfer relief to workers in labor cases filed with the CNMI Department of Labor.

However, the transfer issue is “more ambiguous” in cases filed with the U.S. Department of Labor, National Labor Relations Board, or Equal Employment Opportunity Commission, Cody said.

While the local Labor Department regularly relies on the finding of the federal agency, the difficulty arises when federal cases or investigations are dismissed without any adjudication on the merits, he maintained.

“On the one hand, the mere filing of a charge before the EEOC should not give rise to an automatic transfer, without regard to the outcome of the federal case or the relative fault of the parties. Adopting such a bright-line rule could lead to its abuse as it could encourage the filing of frivolous federal claims by workers merely for the purpose of obtaining a local transfer,” he said.

“On the other hand, a nonresident worker’s transfer request should not be automatically denied where a federal claim was dismissed for procedural reasons that do not constitute an adjudication on the merits. To adopt a policy of automatic denial would unjustly deny the nonresident of any discretionary review of the transfer issue,” he added.

The administrative order stemmed from an EEOC complaint filed by Gu Yan, a former garment embroiderer for the now defunct MOA Corporation, on March 9, 2004.

On March 16, 2004, Gu filed the labor case against MOA over alleged abuse and improper permit processing by the employer. The local Labor case was settled during a mediation hearing on April 26, 2004. Under the terms of the settlement, MOA Corp. paid Gu $400 and Gu was given 45 days to transfer to a new employer.

On Jan. 25, 2005, the EEOC dismissed Gu’s complaint on the ground that MOA Corp. was no longer in business. The federal agency did not provide a decision on the complaint.

According to Cody, Gu should depart the Commonwealth because she failed to secure employment when she was first given the opportunity to do so.

“I find that a second transfer opportunity is not warranted by the facts or law. Although complainant was entitled to remain in the Commonwealth during the EEOC’s investigation, that case has now been closed. Therefore, complainant no longer has a work or immigration status to remain in the Commonwealth,” Cody said.