DOL orders waitress to depart for using complaint process to extend stay

The Department of Labor has ordered a waitress to depart the CNMI for using the labor complaint process to extend her stay in the CNMI with her boyfriend.

Labor administrative hearing officer Barry Hirshbein determined that Angeli A. Salvacion filed the complaint for the purpose of gaining more time to seek a transfer employer and not for the reasons stated in her claims.

“Salvacion was not diligent in pursuing her claims and used her employment status to remain in the CNMI despite the fact that she was not employed. The grant of transfer relief is discretionary. Such relief is not warranted in this case,” Hirshbein pointed out.

Hirshbein ordered the employer, American R.F. Corp., to provide repatriation ticket and pay Salvacion $976 (less withholding tax on $488) in unpaid wages and liquidated damages.

The hearing officer sanctioned American R.F. to pay $1,000 fine to the government and barred the company from employing alien workers for abandoning Salvacion.

Hirshbein referred the matter to the Division of Immigration as American R.F. is no longer doing business in the CNMI.

Labor records show that Salvacion, a Filipino, was hired by respondent American R.F. Corp. and began working for them as a waitress on Aug. 3, 2005.

Twenty-eight days later, the business closed due to a fire at the restaurant.

Salvacion claimed that she was not paid for this period of employment. She did not work for respondent after Aug. 31, 2005 and was advised by a Chelita Romero, the document handling agent for respondent, to wait and see if the restaurant would be reopened.

Salvacion spoke with Romero again in July 2006 and was advised to look for another employer.

The worker stayed with her boyfriend after the business closed. He supported her by paying rent, buying food, and providing financial assistance to her family in the Philippines.

During the hearing, Salvacion admitted that she did not file the complaint to recover money. She said she filed it because she thought it would give her more time to find a transfer employer.

In his order, Hirshbein said this fact alone strongly suggests that Salvacion’s complaint is frivolous.

Salvacion filed her labor complaint on July 13, 2006, after more than 10 months without work and less than one month before expiration of her contract.

Salvacion claimed that she did not work at all after Aug. 30, 2005. She testified that she looked for work after March 2006 but couldn’t find any. Her entry permit expired on Aug. 4, 2006. She now testified that she has an employer willing to hire her if she is granted transfer relief.

Hirshbein pointed out that it is clear that Salvacion was abandoned by her employer but the case raises important questions related to transfer and recovery of unpaid wages for the period that she did not work.

“Salvacion waited almost 11 months to file her labor complaint. This shows a complete of lack of diligence in pursuing her claim,” he noted.

Hirshbein said Salvacion was in an advantageous position in that she had someone to support her period of unemployment.

Hirshbein said the complainant testified that if her boyfriend had not been supporting her she would have come to Labor right away after the business closed in order to be allowed to seek a transfer.

Instead, Salvacion took a year long vacation and then filed a complaint for the entire year’s wages. Salvacion has unclean hands. It would be inequitable to reward her lack of diligence,” he said.

But Hirshbein said the complainant is entitled to recover unpaid wages for the four weeks that she worked in August 2005 at the rate of $3.05 per hour, plus liquidated damages in an equal amount.

Hirshbein stressed that the fundamental purpose of the Nonresident Worker Act is to provide a mechanism for “necessary employment of nonresident workers in the Commonwealth.”

“By her own actions, Salvacion established that there was no need for her employment in the CNMI. Salvacion did not promptly report her employer’s abandonment. She chose not to seek employment and made no effort to mitigate her damages,” he added.