Response to Wendy Doromal’s comments on emergency regulations

A set of comments on the emergency regulations with respect to the federalization cap, attributed to you, was delivered to the Department of Labor by Junhan B. Todeno, although we have not received any comments directly from you. Moreover, these comments seem to have little to do with the emergency regulations required when the federalization bill passed. However, these comments have been registered as a part of the administrative process. This is the Department’s response.

The only time that a foreign national worker would be repatriated while a case was pending in a court is if the court refused to issue an order authorizing the foreign worker to remain in the Commonwealth pending the completion of the case. Foreign national workers are not repatriated pending NLRB, EEOC, or U.S. Labor cases. However, the procedure with respect to determinations on status has changed. The Department of Labor will determine status as soon as a permit expires or a contract is terminated prior to expiration. If eligible, the worker will be given an opportunity to transfer. If a transfer is arranged, then the worker retains status under the new contract. If no transfer is arranged, the worker loses status but may remain until the case is determined before being repatriated. There is no denial of due process.

It is not correct to assert that most foreign national workers who bring labor cases, EEOC, NLRB, or U.S. Labor cases are “owed money from violating employers.” In fact, most workers who bring cases of any kind want only one thing—which is to be able to remain in the Commonwealth for as long as possible. In a very high proportion of cases, wage claims are abandoned and never pursued, so the employer owes nothing.

The Department of Labor does not have responsibility either for deportation of overstaying workers (this is the responsibility of the Division of Immigration) or for enforcement of monetary awards included in administrative orders (this is the responsibility of the Commonwealth Superior Court). The Department of Labor publishes lists of overstaying workers so that any worker whose status needs to be corrected will have an opportunity to get this done. The Department of Labor publishes lists of those who may be holding unpaid administrative orders so that those workers can be assisted in pursuing their claims in Small Claims Court. You are absolutely wrong that the Department of Labor publishes one kind of list and not the other. Please see the lists published on Monday, May 19, as examples.

When an administrative order is issued, the Labor Department considers a case “settled” only if the parties have entered into a voluntary settlement agreement which has been approved by a hearing officer. In all other cases decided by a hearing officer, the Labor Department considers a case closed 30 days after the order is issued and served on the parties if the matter has not been appealed to the Secretary. The Department will facilitate payment within a 30-day period by accepting checks from employers and delivering those checks to foreign workers. However, after 30 days, the Department does not collect amounts awarded. Collection matters are pursued in the courts. There is no flaw in the Department’s policies with respect to its orders or post-order actions. Most administrative agencies in the United States operate this way. In the U.S., no foreign worker is given any special administrative process for assistance in adjudicating wage claims. All claims are made before the courts.

Most employers are law-abiding and pay the monetary awards. Some appeal both to the Secretary and to the courts, as is their right. Some win their appeals, and no monetary payment is due. In the past, one problem has been employers who declare bankruptcy (as they are allowed by law to do) and leave workers unpaid. That happens to all types of workers under U.S. law, which allows the discharge of wage claims in bankruptcy. In the past, another problem has been foreign-based employers who leave the Commonwealth and leave workers behind who are unpaid. Once persons are beyond the territorial limits of the Commonwealth, the CNMI government has no jurisdiction to enforce any administrative order. Another problem has been that foreign workers decide not to pursue their judgments, in some cases perhaps because they are illegal overstayers. The Department of Labor recently turned over to the Department of Finance many checks paid by employers under administrative orders that were never picked up by the foreign worker. In other instances, administrative orders have remained unenforced for years, well beyond the six-year statute of limitations and are now, under Commonwealth law, unenforceable. It is not true that the Department’s policies are flawed; it is not true that anyone is “sticking it to the workers; and it is not true that anyone is “ignoring the violations of the employers” as you assert. In fact, the Commonwealth’s system is much more advantageous to foreign workers than the labor system in the mainland U.S. in nearly every respect. Workers are not disadvantaged by small claims court procedures. Filing a small claims case costs no more than filing a labor case with the Labor Department. Foreign workers do not need lawyers in order to pursue collection in Small Claims Court. The clerks and the judge assist workers to make their claims, and these claims are decided promptly.

There is nothing unusual about using the courts to collect administrative orders that include money judgments. This is done in nearly every state in the United States. That is what courts are for. Courts have far more powers than do administrative agencies. Courts can even send people to jail for significant periods in order to encourage them to pay their debts.

There is nothing unconstitutional about any practice of the CNMI Department of Labor. If you survey the states of the United States, you will find that foreign workers who come to the Commonwealth are afforded far more procedural rights and protections than state agencies (for example in Florida), and certainly better protection than federal agencies provide to guest workers in the U.S. In most cases, guest workers get better protection of their rights in the Commonwealth than they would if they were working at comparable jobs in their home countries.

In assessing amounts owed to foreign workers, it is important to understand that the Commonwealth law allows workers to collect far more than they would if they were working in any state on the mainland. Commonwealth law allows collection of a full 12-months unpaid wages if no job was provided. In the states, no worker would collect for 12 months of not working. Every worker would be required to mitigate damages and it is unlikely that more than 30 days of unpaid wages would be allowed for an unfinished contract. In addition, in the states, no “liquidated damages” would double a worker’s award. Analyzed against U.S. standards, foreign workers in the Commonwealth are not owed $6.1 million, but less than 1/10th of that amount.

Because many cases are uncontested, with only the worker showing up at a Labor Department hearing, it is not possible to determine with accuracy how many cases of worker fraud exist. As you know, workers and their advocates understand that if the employer does not show up, there will be no one to contest their claims and they can make almost any untrue assertion without fear of contradiction.

The Department of Labor is not “blaming” the ombudsman for anything. The Department asked the ombudsman to provide copies of the orders and sworn statements that the ombudsman had collected. The ombudsman refused. The ombudsman can choose not to cooperate with the Labor Department. The Department simply stated that the ombudsman had chosen not to cooperate; that the Department is short-handed and does not have the staff to sort through years-old files that have been sent to storage and; therefore, the Department decided to deal with this matter administratively, which the Department is doing. Please recall that the ombudsman has the assigned task of assisting foreign workers with their claims. The ombudsman never acted in 1999, 2000, 2001, 2002, 2003, 2004, 2005, or 2006 to do anything about unpaid administrative orders that were lapsing beyond the statute of limitations and thus becoming unenforceable under Commonwealth law.

If you have further questions or comments, please let us know.