Cancellation of employment applications questioned

Another Department of Labor administrative hearing officer has cited a “problematic” case caused by the Division of Labor’s longstanding practice of accepting requests to cancel workers’ employment application.

Labor hearing officer Jerry Cody echoed fellow hearing officer Barry Hirshbein’s recent observation that employer requests to cancel pending work applications are problematic, as there exists no statute or regulation authorizing such a procedure and that the internal procedures for processing such requests are not entirely clear.

Cody said the case of the defunct Tropical Color and its then employee, Dolores R. Pagaspas, also “highlights the difficulty in handling such requests.”

Cody affirmed the Labor director’s decision to deny the administrative transfer application submitted by Tropical Color to employ Pagaspas. The hearing officer granted Pagaspas’ request to allow her to transfer to another employer. Cody gave the worker 15 days to find a suitable employer who shall submit an employment application to the Labor Division within a 45-day period.

He required the prospective employer to apply for a conditional grant of transfer at the time he or she files the transfer application.

The transfer period will expire on Oct. 31, 2006.

Labor records show that Pagaspas worked for Tropical Color under a nonresident work permit that expired on July 8, 2006. Tropical Color filed a timely renewal application on June 30, 2006.

On July 20, 2006, Tropical Color informed its employees that the employer had decided to cease business operations in the CNMI effective Aug. 31, 2006.

That same day, the employer informed Labor of the impending closure and asked that two pending renewal applications be cancelled. One of the applications was the renewal application for Pagaspas.

In late July 2006, the Labor director referred Tropical Color to the processing section to discuss how to arrange the cancellation of the renewal applications and the possible transfer of these workers.

The employer, Pagaspas and two other Tropical Color employees went to the processing section and met with Mitch Aaron.

Aaron told the employees that they could immediately begin looking for work and that if they find an employer, Labor could arrange a consensual transfer to a new employer. Aaron never mentioned any specific deadline for filing the transfer application.

On Aug. 23, 2006, Labor denied the renewal application for Pagaspas based on Tropical Color’s cancellation letter. The worker promptly filed the appeal for the purpose of requesting transfer relief.

Tropical Color purchased a repatriation ticket for Pagaspas to return to the Philippines on Nov. 1, 2006.

In his order, Cody pointed out that traditionally, Labor has allowed nonresident workers who are displaced by an employer’s business closure to seek transfer to a new employer.

“The rationale is that the closure constitutes legitimate grounds to terminate the contract; and since the workers are not at fault in the termination, they should be granted transfer relief in accordance with Labor’s longstanding policies,” he said.

In this case, Cody said, Labor informally approved the cancellation of the renewal application during a meeting held at the processing section.

At that July 20 meeting, Labor’s representative invited Pagaspas to begin looking for work, but gave her no specific transfer deadline.

Subsequently, Cody said, Labor issued an official denial notice regarding the application, but the notice does not discuss transfer as it only mentions the worker’s ability to appeal the denial.

Pagaspas promptly appealed the denial to obtain additional time to seek transfer relief.

Pagaspas admitted that she has looked for work for nearly three months—from July 20, 2006, until the present—but has been unable to find a new job. She is now asking for additional time to find work.

Cody said that, given the time she has already spent in her job search, Pagaspas would ordinarily have exhausted the transfer period. On the other hand, he said, this worker has never been given an official deadline; therefore, “it would be unfair to summarily deny her present request for additional time.”

“The employer seeks to minimize his exposure to liability and therefore, opposes anything other than a limited grant of transfer period,” he said.

The department, he said, takes a somewhat neutral position by not opposing transfer but leaving the amount of days to the discretion of the hearing officer.

Pagaspas requested that she be allowed a minimum of 15 days to secure an employer.

A 15-day transfer period was not opposed by Tropical Color, Cody added.