Labor sanctions three for lying

Posted on Sep 30 2008

The Department of Labor has sanctioned a company, its manager, and its employee for engaging in unlawful employment and lying under oath during a Labor hearing.

Labor Administrative Hearing Officer Jerry Cody ordered Power Corp. to pay a $1,000 fine to the CNMI Treasury and provide a repatriation airline ticket for its manager, Jeon Sook Ja Kim.

In his administrative order issued Friday, Cody revoked Kim’s work and entry permit and ordered her to depart the CNMI no later than 30 days. He barred Kim for a period of one year from working in the CNMI as a foreign national worker.

The hearing officer also sanctioned the worker, Haiyan Nan, to pay a $500 fine, to be given in two installments.

Cody reinstated the earlier transfer provisions of the previous administrative order except that Nan was only given seven days to register with Labor’s Division of Employment Services. Nan was also required to submit within 15 days an employer intent form to Labor’s Employment Services.

“Although the parties expressed remorse at the April 24 hearing, that was only after they were caught and were attempting to convince Labor to be lenient in its punishment,” Cody said.

The hearing officer said he finds that severe sanctions should be assessed against both the manager and corporation.

According to Labor records, Power Corp. operates a small business located within the Duty Free mall in Garapan. The company engraves pendants with personal messages and sells them to DFS customers.

Kim holds a foreign national work permit to work as manager of the business. Nan is a petitioner who had applied to work for Power Corp. as a “commercial cleaner.”

On April 9, 2008, an objection hearing was held in the Labor Hearing Office regarding Power’s attempt to employ Nan as a commercial cleaner.

Power manager Kim testified that she needed a commercial cleaner to help her prepare the pendants that she sells at DFS.

Kim testified under oath that the prospective employee, Nan, would be not be doing any actual engraving or selling pendants to customers.

Kim and Nan stated under oath that Nan had not yet started working for Power.

At the conclusion of the hearing, Cody affirmed the objection, finding that the employer’s testimony “failed to establish the need for full-time employment of a commercial cleaner for this small business.”

Nan was granted another opportunity to find a new employer.

On the evening of the April 9 hearing, Labor director Barry Hirshbein happened to be in the DFS store when he observed Nan working as a sales person at Power’s engraving booth.

The Power’s manager (not Jeon Kim) was called to the store, whereupon he admitted that Nan had been working at the booth for more than a month.

In response to the new information, the Labor director opened an agency case against Power Corp. and Nan for unlawful employment.

At the agency hearing on April 24, Nan admitted she had lied under oath during the April 9 hearing when she testified that she was not currently working for the company.

Nan then testified she had begun working at the employer’s DFS booth on Feb. 10, and worked there continually until April 9, 2008.

Nan explained that she had been told by Kim that she was allowed to begin working for the company. The manager allegedly told her to lie in the April 9 hearing by denying that she was already working for the company.

At the agency hearing, Kim admitted that she had lied under oath during the prior hearing when she testified that Nan was not yet working.

In fact, she put Nan to work without a permit or authorization from Labor, even though she knew it was against the law to do so.

Kim also admitted she had advised Nan to lie at the April 9 hearing by stating that she was not yet working.

The manager expressed great remorse for her conduct and asked that all sanctions be leveled against her and the company, rather than the worker because Nan was just following her instructions.

Kim admitted that her intention had been to receive the commercial cleaner permit, then to switch Nan to a sales person position at a later date.

The Labor director sought substantial sanctions against respondents for the unlawful employment as well as for lying under oath at the April 9 hearing.

The director moved to revoke the permit of manager Kim; to revoke the prior grant of transfer to Nan; and to impose a substantial monetary fine against Power Corp.

In his order issued Friday, Cody said the parties’ conduct in this case “is both egregious and willful.”

“The unlawful employment of Nan amounts to serious violation, which alone could lead to denial of transfer relief and substantial sanctions,” Cody said.

He noted that the fact that both respondents also lied under oath about the employment makes their conduct even more egregious.

Cody said, though, that having considered the matter carefully, he concludes that some leniency toward the worker is warranted in this case.

“Although Nan began working without authorization, it is understandable that she felt pressured by her new manager to begin working as soon as the manager instructed her to do so,” Cody said.

Certainly, he said, Nan should be sanctioned for this unlawful conduct; however, the worker shall be sanctioned monetarily rather than by denying her transfer relief.

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