Thanks, Again!

Thanks to all the friends and family who braved the rain showers to show up at my Appreciation Picnic. Your being there made the occasion all the more special!

Message Of Appreciation

In the spirit of Thanksgiving, there are many things that I have to be thankful for.

I am thankful for the constituents of Precinct 1 who gave me the opportunity to serve in the 15th Legislature.

I am thankful for the people of Precinct 1 who voted to retain me in office.

I am thankful for my supporters from outside Precinct 1, on-island and off-island.

I am thankful for my Committee to Elect.

I am thankful for my staff, the best staff anyone could ever ask for.

I am thankful for my most loving and supportive friends and family.

I am thankful for my ever-expanding Beautify CNMI family.

And as a token of my heartfelt appreciation, I invite all of my supporters to a Thank You BBQ to take place this Saturday, November 24, at the Susupe Beach Park at noon.

Finally, I would like to congratulate the six representatives elected in Precinct 1. I wish them the best of luck.

Sincerely,

Rep. Cinta M. Kaipat
Your representative in the 15th CNMI Legislature

* * *

Lamegai na manera ni bai hu fan nahe, pat sino bai hu extendi un dungkulo na agradesimento yan apreciacion, yan Si Yu’us Ma’ase ya taya maas propio yan bonito kumo ha’aanen i Thanksgiving.

Para ayo siha na man bibota gi Precinct 1, hu extetendi un sen dungkulo na Si Yu’us Ma’ase pot i opotunidat ni ma nahi yo pot para bai fanetbi gi muna Kinsi na lehislatura.

Un sen dungkulo na agradesimento para ayo siha na siudadano siha ni ma nahi you nu’i botun konfiansia kosake sina bai hu kontinuha mona sumetbi i taotaota yan para minaulek yan mas adilanto gi Precinct 1 yan para todo i islata siha enteramente.

Hu extetendi lokue un sen dungkulo na Si Yu’us Ma’ase yan agradesimento para i man atungo’hu, familia, yan man parentes siha pot todo i ayudo yan minapot niha, yan kuntodo ayo siha i manmanapota parehu ha gi palo siha na election precinct yan i man gaigi gi otro tano na manasaga.

Sen mas, i mamamaila na sabalu, Nobiembre dia 24, 2007, gi talu’haane, hu extetendi i inbitasion para todo ayo siha supottadot siha ni mu nahi yo nu I botun konfiansa gi Precinct 1, ya tafan hita man ma nunu guato gi Susupe Beach Park gi fihon I Saipan Grand Hotel.

Pot los otimus, saludu yan Buena suerte para I seis ni man ma elihi para representadod election precinct numero uno gii muna Disi-seis na lehislatura.

Sinceramente, Olomwaay, yan Si Yu’us Ma’ase,

Guaho si Cinta M. Kaipat
I Representanten miyo gi muna Kinsi na lehislatura.

***

Ngare bwuluul Thanksgiving, esogh milkka e’mescheragh bwe sibwe iira bwe yeew tomwoogh na Olomwaay me ghilisow.

Me’rei, ngalirr alongeer schoo’kwe re bobota me lool Precinct 1, Olomwaay reemi reel aami ngaleai yami botool konfiansa bwele ibwe mwalil tolong lol imwal Seigh me Limoowal imwal kongreso ngare ghang yaami kongreso.

Bwaal yew tomowgh na Olomwaay ngaleer schoo’kwe re lol’loo Precinct 1 kwe re bwal ngaleai sefali yaar botol konfionsa lool raalil botasion ye e’ghulaal mwetsangi ghisch.

Bwaal Olomwaay ngaliir alongeer scho’kewe ay ghi abwibwi, schoo’kewe ay ghi ghulefengeel, me alongeer ay schoo kkwe re towow bwe rebwe scheliay lool ay mwaghutghut ngali me sangi botasion ye e ghulaal mwutch loo ewewee schaagh ngaliir alongeer scho’kkwe re lolo lool akkaw precinct pat schoo’kkwe ra mwetsangi faliw kka faliwasch bwe raalo loloto mwe wool yew faliw.

Wool saabwal ye e’kke mwatto, Nobiembre 24, 2007, ye atol laalewaas, i’kke amuschaligh ghami alongeer schoo’kkwe re suppotali ay bwe ow sibwe schoo fengeel bwe ow’sibwe ghisch le apwesch reel Susupe Beach Park, arool Saipan Grand Hotel.

Ngalir schoo’kkwe majoria botadouur precinct 1 re botaliir bwe eer rebwe representaliir aramasal precinct 1 lool Seigh me Oloow na imwaal kongresu, ikke ngaleghami yew tumowgh na good luck me lios sam schoolwaami.

Tirow me Olomwaay reemi.

Ngaang nge Cinta M. Kaipat
yaami kongresa me lool Seigh me Limow na lehislatura.

JG Sablan Continues To Bring Unwanted International Publicity To The CNMI

Sunday, November 18, 2007


EPA report highlights hazardous wastes in Pacific


By Marconi Calindas
Reporter
The U.S. Environmental Protection Agency has issued its Pacific environmental enforcement accomplishments and highlighted hazardous waste-related cases in the CNMI and the rest of the Pacific region for 2007.

The EPA's enforcement actions for 2007 in Guam, American Samoa and the CNMI highlight the agency's successful efforts to make polluters achieve on-the-ground improvements to bring environmental and public health benefits.

The report said that increased focus on compliance with hazardous waste, underground storage tanks, and oil spill management regulations made up a majority of the cases for CNMI, Guam, and American Samoa.

“Polluters committed to more than $2.48 million to correct environmental violations and prevent future pollution, resulting in over 1 million pounds of pollutants reduced in the environment,” said EPA.

The report highlighted three environmental citations issued to three major entities in the CNMI.

One firm is the Everbright Company, Ltd., which was fined $5,000 for hazardous waste violations at its facility at the Fina Sisu Village. The company is a full-service screen-printing business and generated wastes such as toluene, turpentine, naphtha-based and other cleaning solvents, and waste ink.

Another company cited was the JG Sablan Rock Quarry Inc., which was fined $400,000 for used oil and used battery management violations at its Lower Base facility on Saipan.

The report said that in March 2005, EPA inspectors discovered 2,000-gallons of used oil and 85 severely corroded and leaking 55-gallon containers of used oil inside the company's secondary containment area. The inspectors also found heavily oil-stained soil under 50 additional containers and on surrounding soil, along with many other leaking containers, vehicles, and lead acid batteries throughout the facility.

The EPA also ordered the government-owned Commonwealth Utilities Corp. to clean up spilled oil and prevent discharges of oil at Power Plants 1 and 2 at its Lower Base facility on Saipan. The order required CUC to stop all oil discharges and take steps to prevent future spills. The order also required CUC to develop a used-oil management and disposal program aimed at reducing the amount of used oil stored at the facility.

“Our actions against companies mismanaging hazardous waste in Guam and CNMI will provide island residents cleaner air, water and land,” said Wayne Nastri, administrator of the EPA's Pacific Southwest office. “The EPA will continue to enforce environmental laws and ensure compliance of environmental regulations to improve public health.”

The EPA worked with the Guam EPA, CNMI Division of Environmental Quality and the American Samoa EPA to continue the successful compliance and enforcement partnership in the islands.

The report also cited its enforcement achievements in Guam and American Samoa.

The Carrier Guam of Tamuning, a refrigeration and heating equipment services company, was fined $63,922 for allegedly importing refrigerants regulated by the Clean Air Act. The company imported 32,356 kilograms of hydro chlorofluorocarbon, an ozone-depleting substance.

Guam Waterworks Authority was fined $40,000 for failing to fully comply with a 2003 court order to repair and improve its wastewater system. “GWA failed to meet April and June 2007 deadlines for the Agana sewage treatment plant and a May deadline for the Northern District plant to ensure compliance with federal permit limits from these two facilities,” said the report.

California-based Four Seasons General Merchandise, Inc. and 26 California Bazar were fined $24,960 and $9,360 respectively for the alleged sale and distribution of unregistered pesticides in Guam and California, a violation of federal pesticide law.

Four Seasons sold the unregistered pesticides Clorox Disinfecta, a Mexican version of Clorox Bleach, and Citronella Incense mosquito coils to retailers in Guam and California on five occasions between August 2006 and March.

26 California Bazar sold the unregistered Pyrethroid pesticide, Camping Mosquito Sticks, to Guam retailers on two occasions. In addition to the fine, the company has agreed to stop selling the product.

The Guam Waterworks Authority was issued a compliance order for improperly reusing sewage sludge from its Northern District Sewage Treatment Plant. EPA found sewage sludge from the treatment plant that was distributed, violating the Clean Water Act. Sludge of an unknown quality was distributed between January and August 2006 to several individuals for use on fruit trees and bushes.

In American Samoa, the American Samoa Seaside Service Station was fined $10,400 over alleged federal underground storage tank violations at its facility in Malaloa Village. Seaside Service Station failed to meet federal requirements by not conducting line tightness tests or using a monthly leak detection method on its petroleum piping, and by not adequately monitoring the underground tanks for leaks.

For the full description of US EPA 2007 enforcement cases visit http://www.epa.gov/region09/enforcement/results/index.html. The report also provides full description of the EPA_s enforcement cases throughout California, Arizona, Nevada, Hawaii and the Pacific Islands in 2007.

For information on the EPA's national enforcement summary for 2007, go to http://www.epa.gov/compliance/data/results/annual/fy2007.html.

Clarifying misconceptions about labor reform bill

Friday November 16, 2007
Letters to the Editor
Friday, November 16, 2007





Editor's Note: The following is a letter addressed by the author to the members of the Legislature. She has requested that it be published as an open letter.

Dear colleagues:

The Department of Labor will soon publish its regulations with respect to PL 15-108, the new labor bill. Before the regulations are even published, the Ombudsman is condemning the implementation of the new law as “unacceptable” in three regards, and he is already seeking amendments. I want to assure you that none of these complaints is new and none has any basis in fact. The Labor Department's plan is to assess performance under PL 15-108 in September 2008, and to send to the Legislature in its annual report any modifications that may be needed based on actual experience over the first nine months in operation under the new law.

The prohibition with respectto illegal sponsorship:

Mr. Benedetto says we have erred in our prohibition of illegal sponsorships. He wants the deterrent to illegal sponsorships removed from the statute. He is wrong. The provision of the new law is clear and will not be used against any foreign worker who has a real job. An illegal sponsorship is an arrangement under which the employee pays application fees (which are required by law to be paid by the employer) because the employer is not really an employer at all - the “employer” is just a front so the employee can stay in the Commonwealth. In these situations, there is no job for the employee. The “employer” files an application with the Labor Department but provides no job. The employee goes into the underground economy to support himself or herself and waits for better times when a job might become available. This practice is a real scourge in the Commonwealth, and we need to stop it.

Section 4964(d) of PL 15-108 provides:

“In order to prevent the solicitation of sponsorships under circumstances when a foreign national worker is present in the Commonwealth and seeking to stay, a foreign national worker who, while in the Commonwealth, pays for an application fee or a renewal fee shall be deportable under 3 CMC §4340(e).”

The proposed new regulations provide:

1. Solicitation of sponsorships. The purpose of Section 4963(k) and Section 4964(e) of PL 15-108 is to prevent illegal sponsorships in which the employer is offering no viable job but files an application in order to allow the foreign national worker to remain in the Commonwealth. These sections do not apply to employment arrangements in which the employer is offering a legitimate, viable, wage-paying job. The hearing officer shall apply these sections in this way.

(a)A foreign national worker who intentionally and knowingly violates Commonwealth law by paying an application fee or a renewal fee in the place of an employer solely in order to remain in the Commonwealth, under circumstances in which the employer provides no viable wage-paying job for the worker, may be deported if, under all the circumstances of the case, deportation is the appropriate remedy.

(b) A foreign national worker who pays an application or a renewal fee in connection with an existing, viable, wage-paying job may not be deported on account of the violation of these sections. If the employer provides a viable job for which the worker has been employed, they have not participated in an illegal sponsorship arrangement involving sham employment. Foreign national workers who pay an application fee or renewal fee under these circumstances have a claim against the employer whose responsibility it is to pay the fee and may be awarded damages if, under all of the circumstances of the case, damages are the appropriate remedy. Similarly, a foreign national worker who pays an application or a renewal fee without knowledge of or intent to participate in an illegal sponsorship arrangement may not be deported on account of the violation of these sections.
These provisions will help end illegal sponsorships and will not cause any harm to foreign workers who have legitimate jobs. No domestic helper who has a legitimate job and pays application fees is going to be deported. That is not going to happen. But unscrupulous foreign workers who would cheat under our system in order to stay in the Commonwealth may be deported if a hearing officer finds that is an appropriate remedy. No changes should be made in these provisions.

The requirement to bring actions promptly:

Mr. Benedetto says that the requirement in PL 15-108 to bring an action within six months “will completely eliminate the right of nonresident workers to seek compensation for their legitimate grievances.” He says that this six-month statute of limitations harms foreign workers because it will operate in conjunction with the requirement that foreign national worker depart the Commonwealth within 30 days of the expiration of their contract if it is not renewed or they have not been granted a transfer.

This is wrong on two grounds. First, a six month statute of limitations to complain about problems with a one-year contract is perfectly reasonable. The statute of limitations on election matters is 30 days; and the statute of limitations on probate matters is 60 days. Second, no legitimate worker is required to leave the Commonwealth and abandon a pending claim.

The proposed new regulations provide:

“Extension by order of a hearing officer. A foreign national worker who attends a mediation session after filing a complaint (see Part VI, Section 4(A)(16)) may request an extension of time for departure from the Commonwealth from the hearing officer. An extension of time will normally be granted by the hearing officer unless there is a finding by the hearing officer that the foreign national worker is likely not to appear at the hearing or a deportation order already has been entered or equivalent circumstances exist. A hearing officer's order granting an extension of time shall also set an initial hearing date in the matter. A denial of an extension of time may be appealed.”

There is no reason why a hearing officer should allow a person to remain in the Commonwealth if they are likely not to show up for a hearing. Similarly, if a person has already been ordered deported by a judge, that person has already had an opportunity to argue to a judge that they should be allowed to stay in the Commonwealth to pursue a claim. No changes should be made in these provisions.

The new prohibition on underaged workers:

Mr. Benedetto is concerned that underage bar girls might be deported because the new law requires all foreign workers to be 21 years old. He is wrong about this. The new law prohibits nightclubs from bringing underage “waitresses” into the Commonwealth. Mr. Benedetto should support this. But the new law will not harm underage workers currently in the Commonwealth - to the contrary, it will help them.

The proposed new regulations provide:

“An employment contract in effect on January 1, 2008, the effective date of PL 15-108, under which a foreign national worker of an age of less than 21 years is working may be performed in accordance with its terms after January 1, 2008, the effective date of PL 15-108. However, the employer of an underage worker must bring the worker to the Department by February 15, 2008 to meet with an investigator who will determine whether the employer and the nature of the employment are suitable for an underage person. The contract may be renewed, even if the foreign national worker is under the age of 21 at the time of renewal, provided that an investigator has determined in connection with the renewal application that the employer and the nature of the employment are suitable for an underage person. Underage persons who are in unsuitable employment may register with Employment Services to find suitable employment and may remain in the Commonwealth while suitable employment is found.”

We do not want underage women exploited in unsuitable jobs. The new law provides a sensible age requirement, and we should not change that.

* **

The new law gives the Department of Labor the tools with which to move decisively against the scams and illegal activities in which some foreign workers and employers have engaged. Rooting out these activities inevitably will affect a few of the people that the Ombudsman represents. However, we have good hearing officers at the Labor Department, and no one will be denied a fair chance to stay in the Commonwealth if they are not deliberately flouting our laws. If the hearing officers make a mistake, we have appeals so that others can consider the issues. The process is fair; the law is balanced and a great improvement over where we were; and the community will be involved in commenting on the regulations that will implement the new law. We need to set aside arguments about what conceivably under any stretch of the imagination “could” happen and focus on what actually does happen under the law. I am confident that the outcome will be excellent.

Rep. Jacinta M. Kaipat
Chair

OPEN LETTER TO MARK HANSON RE HB 15-38

Wednesday November 7, 2007
Letters to the Editor
Wednesday, November 07, 2007


Open letter to Mark Hanson


The points that you made in the newspaper on Friday about H.B. 15-38, the new labor reform bill, seem to be quite different from the comments that you made when we were drafting the bill. Our Task Force asked you to comment on the bill as we know that you represent many foreign workers in your law practice, and your job is to allow them to stay in the Commonwealth for as long as they wish. I went back and looked at the document you submitted containing your comments. We accepted some 13 of your recommendations and we rejected 11 others. Here they are:

Changes you asked for that are included in the bill

- Definition of “employer”: You wanted a more stringent definition of “employer.” You made a suggestion to use the FSLA definition. We did that.

- Requirement of 50 percent local participation in certain job categories: You suggested that the requirement for a ratio of at least one-to-one (citizen to foreign worker) in certain job categories would be hard on some businesses. You suggested we delete this provision. We did that.

- Moratorium: You opposed the moratorium. The Senate amended the bill to phase out the moratorium.

- Bonding: You suggested improvements in the bonding provision. We adopted those.

- Grammar: You thought “may” was a better term than “shall” in one place. The bill adopts that change.

- Wage and working hours: You suggested that the provisions on wages and working hours be redrafted. We followed your suggestion and did that.

- Location of work site: You asked for more specificity with respect to the location of the work site for construction jobs, commercial cleaners, and similar employment. The Task Force decided that level of detail was better handled in regulations. But your suggestion was not rejected.

- Documentation of wages: You were concerned about a specific requirement with respect to documentation of wages. The bill had then and has now a specific requirement in that regard.

- Medical insurance: You raised several points with respect to the details of the medical insurance program. The Task Force agreed that the details of the medical insurance program should be left to regulations. The current provision that employers are responsible for the medical expenses of foreign workers stays in place until the new regulations on the medical insurance pool are agreed on.

- Termination: You asked for a clarification of termination. We did that.

- Orientation: You objected to the orientation session covering the subject of frivolous complaints. We took that out.

- Closed hearings: You objected to allowing a hearing officer to close hearings when the details of testimony might be embarrassing to a woman or traumatizing to a child. The provision allowing closed hearings was taken out of the bill by the Senate.

- Exemptions: You pointed out that certain exemptions had been overlooked. The Labor Department made the same point. The exemptions were put back into the bill.

Changes you asked for that were rejected

- Name: One of your principal comment was that the bill uses the term “foreign national worker” and you wanted to keep the term “nonresident worker.” We pointed out to you that Judge Munson has several times commented that alien workers are, in his view, “resident” in the CNMI because this is the place where they make their homes. So calling them “nonresidents” doesn't help. That is one of the reasons we substituted “foreign national worker.”

- Consistency with the immigration law: You suggested that there were certain points in H.B. 15-38 that might need to be changed to be consistent with the Entry and Deportation Act. I asked Ian Catlett, who has significant experience litigating immigration cases, to consider your comments. He was of the opinion that no changes to H.B. 15-38 were needed in this regard.

- Requirements of the MOU with the Philippines: You opposed the provision of the bill that requires employers to comply with the requirements of the MOU between the Commonwealth and the Philippines. You thought the CNMI should not “cede authority to foreign regulators.” However, the Task Force found that the provisions of the MOU protect workers in the way that the Philippines Government finds acceptable and should be respected.

- Currency for payment of wages: You asked that the law specify in what currency wages should be paid. The Task Force decided that was not necessary.

- Transfers: You opposed the limitations on transfers. The Task Force found that the current system of transfers cause serious law enforcement problems and opted for a more limited system of transfers when approved by a hearing officer.

- Stays of proceedings: You opposed the provision allowing the Commonwealth's hearing officers to go ahead with hearings on transfers when there are complaints pending elsewhere. The Task Force included this provision to allow the hearing officers to make decisions on transfers (which only Commonwealth hearing officers can make) without waiting years for the outcome of some other proceeding.

- Awards of attorneys fees: You wanted attorneys fees made mandatory when a foreign worker prevails in any way on a claim. The Task Force elected to keep the language which allows the hearing officer to award attorneys fees when appropriate.

- Frivolous complaints: You opposed the language on frivolous complaints. The Task Force decided that frivolous complaints have been a problem in the past and that the language allowing hearing officers to dismiss them and bar the workers who file them is appropriate.

- Periodic exit: You opposed the periodic ext requirement. You said: “I would be more worried about the Korean tourist baby factory called CHC. They WILL come back.” The Task Force decided that the periodic exit requirement was necessary to expand the job opportunities for citizens and permanent residents.

- Statute of limitations: You opposed the six month statute of limitations. The Task Force decided that a flexible six month provision was fair to the worker. There are a number of statutes of limitations in the Commonwealth that are shorter than six months and that govern important rights of citizens and others. Workers are in the Commonwealth under a one-year contract. There is nothing unreasonable in asking them to file complaints within six months of discovering that some wrong has been done.

- Solicitation of sponsorships: You opposed the provision that prohibits workers from soliciting illegal sponsorships and paying the fees imposed on an employer in order to stay in the Commonwealth illegally. The Task Force rejected your reasoning that unsuspecting workers could be caught in this provision. A hearing examiner will examine every case of this kind, and no unsuspecting workers will be punished-only those who know they are violating Commonwealth law and intend to do so in order to stay in the Commonwealth.

* * *

Slavery is a terrible human condition wherever it exists. The Commonwealth does not tolerate such conditions. For you to take the low road and drape that ugly epithet over H.B. 15-38, which is an important effort by many people to update a law that has been on the books since 1983, is irresponsible and dishonest. None of the changes you asked for-that were rejected by the task force-call for that kind of demagogic rhetoric. It reminds me of a story about you that is often told at the Labor Department. You were representing a client in a hearing when you became increasingly loud, rude, and hostile in trying to block your opponent from making fair points. The hearing officer finally told you to take a “time out” and step out into the hall for five minutes to gather yourself and get back into a more productive frame of mind-just like we do to our little kids when they misbehave. You should take a time out, Mr. Hanson, gather yourself, and come back to the debate about the labor bill in a frame of mind in which you can be more productive. It is true that some of the provisions of H.B. 15-38 make it more difficult for you to keep your clients in the Commonwealth than has been the case under the current law. But that does not justify slurs on the motives of legislators in enacting the bill.

Rep. Jacinta M. Kaipat
Chair Judiciary and Governmental Operations Committee
CNMI House of Representatives

Molly Kramis Celebrates CNMI Arbor Day On October 27 and Spreads Beautify CNMI Beautify Virus in Montana

Molly Kramis of Bellingham, Washington, continues to spread beautifycnmi's beauty virus! Here she is shown with the Ponderosa Pine she recently planted in the Bitterroot Valley of western Montana. Molly picked the Ponderosa because of its beauty and----it is the Montana State tree. This particular tree is special because it was given to Molly by Anna, a wonderful 20 month old here who is deaf. With this tree, Molly honors Anna and all the deaf and hard of hearing children in the CNMI.

Note: Molly also lives with Masters Ron and Nancy Kramis. We thank Molly, Ron, Nancy & Anna for spreading the Beautify CNMI beauty virus and for honoring the deaf children of the CNMI.

Open letter to the federal ombudsman

Vol. 35 No.165
©2006 Marianas Variety Thursday, November 1, 2007 www.mvariety.com
Serving the CNMI for 35 years

© 2006 Marianas Variety
Published by Younis Art Studio Inc.
All Rights Reserved
Email : mvariety@vzpacifica.net Open letter to the federal ombudsman


I AM writing to express my dismay that Jim Benedetto, after having participated in many deliberative sessions of our task force, after petitioning the House, and after petitioning the Senate, is now still campaigning against H.B. 15-38, the labor reform bill that passed the House with a vote of 15-0 and that passed the Senate with a vote of 9-0.

Mr. Benedetto’s points in his renewed petition are wrong. They were wrong when they were first made, they were wrong when they were repeated many times during the legislative process, and they are wrong today.

H.B. 15-38 may be the most legally scrutinized bill in recent years. It was reviewed by Ian Catlett, House counsel; Michael Ernest, Senate counsel; Howard Willens, special counsel to the governor; Dede Hill and Eleanor Nisperos, counsel to the Labor Department; Barry Hirshbein, head of the Administrative Hearing Office; Deanne Siemer, a former general counsel of the U.S. Department of Defense and trial lawyer; counsel for the chamber of commerce; counsel for other business entities; and other lawyers who took the time to participate in our public process. And I am a lawyer by training and have reviewed every word of the bill myself many times. This bill has passed muster in every legal respect in this very intensive review process.

In response to Mr. Benedetto, let me be clear about the general allegations:
(1) This bill does not narrow a worker’s right to file a complaint.
(2) This bill does not make it impossible “for many to obtain any relief whatsoever under the Act” and does not restrict anyone’s ability to make a legitimate claim.
What Mr. Benedetto says in criticism of H.B. 15-38 is wrong. Let me answer Mr. Benedetto’s renewed and oft-repeated charges, one by one.

Restrictions on who can file labor complaints.

Mr. Benedetto cites Section 4941 of the bill. This says: “Any foreign national worker who is aggrieved by the failure or refusal of his or her employer to comply with an approved employment contract may make a complaint to the department.” This provision of the new bill is an improvement over the existing law which says, in Section 4434(f), “No civil action may be brought by a nonresident worker against an employer for violation of the Minimum Wage and Hour Act or the Nonresident Workers Act unless the nonresident worker has first filed a written complaint concerning those violations with the chief of Labor no later than 30 days after the violation is alleged to have occurred.” Mr. Benedetto is wrong when he says the new bill is worse than the old law in this respect. Just the opposite is true.

Mr. Benedetto says that anyone who does not have a contract or whose contract has not been approved yet or has an expired contract is not covered by the Act. That is wrong. Every worker who comes to the commonwealth must enter the commonwealth with a contract in place. That contract gives the worker the right of access to the Labor Department’s Hearing Office. Anything that happens to that contract — it lacks approval, hasn’t been renewed, is expired — can be adjudicated by the Hearing Office. No one has been turned away on those grounds under the existing law, and no one will be turned away on those grounds under the new law.

Mr. Benedetto cites a provision of the Findings, Section 2, which provides that: “It is the intent of the Legislature that this Act shall not apply to persons admitted to the commonwealth as tourists, or to persons employed illegally, i.e. without the approval of the Department of Labor.” Mr. Benedetto is wrong when he says this deprives persons of rights. What it means is that these people — who come into the commonwealth as tourists and work illegally, must go to the courts, like anyone else with a complaint who has been cheated or treated badly. And the courts will determine those complaints. All it means is that the Labor Department’s hearing office is reserved for people who came here on work permits. The hearing office process is expensive for the commonwealth to maintain. There is no legal problem whatsoever in requiring people who came here as tourists to go to the courts instead of the hearing office.

Mr. Benedetto says that “although some workers may file complaints just to stay in the CNMI, the vast majority file because they have not been paid.” That is wrong. It is just the other way around. The vast majority file just to stay in the commonwealth, although some workers may file complaints because they have not been paid. Mr. Benedetto cites no statistics, because he has none. The Labor Department’s statistics show that most complainants just want a transfer, and the delay that in previous years has allowed them to remain in the commonwealth waiting for a decision.

The statute of limitations

Mr. Benedetto complains about the six month statute of limitations in Section 4962(b) but what he tells you about that provision is wrong. Here’s what the provision actually says: “No labor complaint may be filed more than six months after the date of the last-occurring event that is the subject of the complaint, except in cases where the actionable conduct was not discoverable upon the last-occurring event. In such instance no labor complaint may be filed more than six months after the date on which a complainant of reasonable diligence could have discovered the actionable conduct.” In other words, this provision is very fair. If a worker couldn’t find out about something that could be the basis for a complaint, they have six months after they did find out or after a reasonable person would have found out. As I have pointed out above, the current law is more restrictive. So the new law is better for foreign workers.

As to whether six months is a reasonable amount of time, one should think about it this way: if you haven’t been paid, or you haven’t been provided with promised benefits, or indeed if there is no job at all, how long does it take to figure that out? A statute of limitations is not measured against any other law. It is measured against the situation at hand. The Legislature decided that six months is reasonable. That means these complaints will not be brought years later when the employer may have lost the records or testimony necessary to defend against these claims. As for no other statute of limitations being this short, Mr. Benedetto is wrong. For example, the Probate Code has a statute of limitations of 60 days.

The departure and return provision

Mr. Benedetto complains that a worker who files a complaint must leave the commonwealth within 30 days and can come back five days before the hearing. He is wrong about this. Section 4956 of the new bill provides this: “A foreign national worker who is required to exit the commonwealth shall be permitted to remain in the commonwealth for a period not to exceed thirty days in order to pursue a civil or criminal claim, or to pursue violations of any commonwealth labor law. After the filing of an action, this period may be extended and departure stayed by a hearing officer or court of competent jurisdiction as necessary to ensure due process rights are protected.”

The Legislature found that some workers manipulate our system just to stay in the commonwealth. This provision allows the hearing officer to permit anyone with a legitimate claim to stay in the commonwealth for as long as it takes to pursue that claim. But it also allows for exit if the person making the claim is “gaming” the system. The hearing officers are fair. Their procedures will contain a presumption that workers may stay to pursue their claims. The Labor Department is disposing of claims in a much more expeditious manner right now. But should they find that guest workers are taking advantage of the system, H.B. 15-38 simply gives the hearing officers the option of having these people go home and await the date for their hearing.

We have taken into consideration the court cases that Mr. Benedetto cites. He knows this because he was a part of these discussions. The lawyers who have reviewed the bill believe that this provision is consistent with these court decisions. I agree.

Restrictions on transfers

Mr. Benedetto complains about the new provisions with respect to transfers. He is wrong about his conclusions as to how the new system will operate.
First, I need to explain that unrestricted transfers lead to the worst enforcement problems that the Department of Labor has. These transfers lead to abuses of the system, illegal employment, payment by workers for illegal jobs just to stay in the commonwealth, and “underground” employment. The Legislature curbed the unrestricted right to transfer for good reasons. We need to end these abuses.

If a worker has a legitimate reason to transfer, all they have to do is appear before a hearing officer and state those reasons. With the new operations by Internet communications that the bill supports, workers with legitimate reasons to transfer may even be able to submit their applications by e-mail and have them approved by return e-mail. The bill does a lot to improve the processes of the Labor Department and foreign workers will benefit by this as will everyone else.
It is true that transfers must be accompanied by a reason. Those reasons include unlawful termination by an employer, reduction in force, and abandonment of the worker. Those reasons include failure to pay wages, exit from the commonwealth by the employer evidencing an intent not to return, bankruptcy, and closure of the business.

In addition, if the hearing officer finds some equivalent theory of law or some equivalent theory of equity, the hearing officer can find that transfer relief is appropriate. That is a safety valve for the future. We know what conditions are now, and we have provided for those. Maybe there will be different abuses in the future, and we have allowed the hearing officers to provide for those. This is a fair system.

Violations by workers

Mr. Benedetto complains that there are “traps” for workers who violate the law. He is wrong. There are no traps. Anyone who has allegedly violated the law will be brought before a hearing officer who will decide the case. Our hearing officers decide cases fairly. They don’t implement “traps.” To say that this is how the system works is an insult to our hard-working hearing officers.

Judicial review

Finally, Mr. Benedetto complaints about judicial review. The judicial review under H.B. 15-38 is basically the same as the judicial review under existing law. The “record” is the documents and evidence that support the claim. This provision with respect to the “record” prevents employers from surprising workers with “new” records on appeal. This provision protects workers; it does not disadvantage them.
In conclusion, this has been a long debate. The House committee, the House, the Senate committee, and the Senate took more than 18 months to consider this bill. We had public hearings, we had many meetings, we were approached by Mr. Benedetto, the business community, local community groups, and concerned persons with all kinds of viewpoints. We balanced all these interests and came up with a good bill. To suggest otherwise is just not fair.


REP. CINTA M. KAIPAT
15th CNMI Legislature

Open letter to the 15th Legislature and people of the CNMI

(This letter appeared in the October 31, 2007, edition of the Saipan Tribune.)


By Jim Benedetto
Special to the Saipan Tribune

I am writing to give my perspective on HB 15-38, the Alien Workers Act. I have worked with members of the JGO Committee in the House for many months to provide insight on how the legislation will affect the Commonwealth's guest workers. Chairwoman Cinta Kaipat has been most gracious in allowing me to offer my thoughts and suggestions, and I want to publicly thank her for all of her hard work and patience.

The version of the bill that has now passed both houses of the Commonwealth Legislature bears little resemblance to the one that was introduced almost two years ago. There were many problems with the original bill, and to her credit, Chairwoman Kaipat took the time to receive comments and suggestions from various people in and out of government in crafting this version. As a result of her considerable effort, there are many provisions in the Act that would be major improvements over the current law.

For example:

- Section 4802 would require that documents coming from overseas, such as health and police clearances, will only be accepted if they come from agencies on a list approved by the Department of Labor, in order to cut down on the many fraudulent documents submitted in support of alien worker contracts.

- Section 4924 would replace the current labor bonds with “approved security contracts” that would be easier to tap in the event the employer is unable to pay for a worker's wages, medical bills or repatriation ticket.

- Section 4932 would allow employers to participate in “pool insurance” with CHC to cover their guest workers' health care needs at an affordable cost.

- Section 4934 would require all workers entering the Commonwealth and their employers to attend a mandatory orientation session at the Department of Labor, so that workers can learn about their rights under the law and where to go for assistance if they have a problem.

- Section 4939 would establish a comprehensive and practical system for worksite inspections by the Department of Labor, to ensure that worksites and safe and legal.

Unfortunately, the bill is marred by provisions that will narrow a worker's right to file a complaint, and make it impossible for many to obtain any relief whatsoever under the Act. Fortunately, all of these provisions can be amended or removed from the bill, which will result in stronger, more effective legislation. The sections of the bill that concern me greatly are listed below, along with an explanation of why they will prove to be troublesome.

Restrictions on who can file labor complaints

Section 4941 of the bill only allows “foreign national workers” to file labor complaints, and then only to enforce “approved employment contracts.” Section 2 of the bill states, “It is the intent of the Legislature that this Act shall not apply to persons admitted to the Commonwealth as tourists, or to persons employed illegally, i.e. without the approval of the Department of Labor. .It is the intent of the Legislature that persons.illegally employed be prohibited from using the terms of this Act to receive or avail themselves of a legal right or benefit.” This means anyone who either doesn't have a contract, or whose contract hasn't been approved yet, or has expired and awaiting renewal, is not covered by the Act.

This creates an injustice because many workers are technically out-of-status when they file their complaints, through no fault of their own. For example, an employer will tell a worker that his renewal papers have been submitted, when the employer has not done so. By the time the worker checks at Labor or comes to the Ombudsman's Office for help, he may have been working illegally for months. Other employers file the worker's application, but purposely leave out some required paperwork, such as the health clearance, knowing that Labor will reject the contract because of a “deficiency,” and issue a denial. Since most workers don't have post office boxes, Labor sends the denial to the employer, who may never tell the worker. Once the worker learns he's been tricked, it is too late; he has already been working illegally. I think the workers in these two examples should be allowed to file a complaint to collect their wages. If this provision becomes law, workers in these situations will, through no fault of their own, be without any recourse to justice.

Prior to 2004, the Department of Labor used to refuse to accept complaints from workers if they were out of status, or if their complaint was not in the proper form. This resulted in many people being turned away from Labor, and abusive employers were neither reported nor sanctioned for their violations. This was remedied in 2004, through revised Alien Labor Rules & Regulations (“ALR&R”). The revised Rules made sure that no one got turned away from actually filing the complaint, no matter what their legal status or the form of their complaint. The Department reasoned that it would be better for the Hearing Office to screen out invalid complaints, after getting all of the facts, rather than refuse the complaint automatically. This is still good policy today, and should be retained.

Workers who file legitimate complaints actually assist the Department by reporting illegal activity by employers. If the Act excludes whole classes of workers from filing complaints, abusive employers will be able to evade the law, because Labor will never find out what they are doing. Letting crooked businesses get away with breaking the law hurts legitimate businesses; it costs money to comply with the law, money that dishonest employers don't pay. Employers who follow the labor laws are thus put at a competitive disadvantage. This is an unintended result that the Legislature should not endorse.

Although some workers may file complaints just to stay in the CNMI, the vast majority file because they haven't been paid, or because their employer treats them badly. We ought to encourage them to come forward when they think they are being cheated, so that Labor can make a determination whether their claims are legitimate and weed out bad employers for the benefit of all employers and employees in the Commonwealth.

An unnecessarily brief statute of limitations

Section 4962 sets a six-month statute of limitations for filing a labor complaint, in most cases. That means that a worker would not be able to complain about anything that happened more than six months ago. This is a problem because many employers repeatedly promise to pay the worker “next week,” and the worker is afraid if she complains, she will lose her job. So, if an employer strings a worker along for more than six months after the bill becomes law, the worker is just out of luck, and cannot file a complaint. Section 4962 has another little surprise: it would not allow any worker to file a labor complaint more than 30 days after the end of the worker's contract. So, if the employer doesn't pay the worker his last two weeks' wages, the worker would only have 30 days, not six months, to complain.

No other statute of limitations under Commonwealth law is limited to such a short period of time. For example, Commonwealth citizens have six years-not six months-to file actions to enforce a contract (7 CMC §2505). If resident workers can wait six years before losing their right to complain about a breach of contract, why should alien workers only get 180-or 30-days? There is no legitimate justification for such disparate treatment.

The departure and return provision

Section 4956 provides that a worker who has filed a labor complaint must leave within 30 days, and can come back five days before the hearing (at his own expense, of course). Make no mistake; few, if any, nonresident workers will be able to afford to return to the Commonwealth for their hearing, especially if their complaint is for lost wages. Requiring the worker to depart will ultimately mean no recovery for nonresident workers who are cheated by their employers. Can it really be the intent of the bill to make it easier for employers to cheat foreign workers?

The section also says that a hearing officer “may” allow the worker to stay beyond the 30 days, but using “may” instead of “shall” means it will be up to the discretion of a hearing officer whether the worker can stay or not. However, the CNMI Supreme Court has already struck down a similar section in two well-reasoned decisions. In Commonwealth v. Deala, 3 N.M.I. 110 (1992), the Supreme Court said that “[i]n an administrative proceeding where a person's life, liberty, or property is at stake, Article I, § 5 of the Commonwealth Constitution requires, at a minimum, that the person be accorded a meaningful notice and a meaningful opportunity to a hearing, appropriate to the nature of the case.”

In Commonwealth v. Rivera, 3 N.M.I. 436 (1993), the Supreme Court held that “an order of deportation, while a valid wage claim is pending, must be stayed until, at the very least, the worker is provided a meaningful opportunity to a hearing. To do otherwise would violate the due process provision of our Constitution.” In elaborating on what a “meaningful opportunity to a hearing” is, the Court said:

The property at stake for the workers in this case is each of their claims for unpaid wages. They must be allowed to have their wage claim heard. The opportunity to have their wage claim heard must be meaningful. In this particular case, it is not a meaningful opportunity to have a wage claim heard if it only means that a worker has to leave the island immediately and then return for brief visits, not to exceed a total of 90 days to pursue his or her claim. Due process cannot be satisfied in this case by placing a specified time limit on the opportunity for a hearing.

Section 4956 will not pass the Deala and Rivera test because it sets a time limit on a worker's stay to pursue his claims, and it leaves extensions up to the discretion of the hearing officer, both things the CNMI Supreme Court has said violate the Constitution.

Restrictions on the type of violations that would justify transfer relief

Section 4947 of the bill would only allow the Hearing Officer to give a transfer to a worker “if other remedies are insufficient” to give the worker the benefit of the bargain he made with his contract. Even if other remedies are insufficient, a transfer can only be granted if the worker has been unlawfully terminated; if the Department voids the worker's contract with the employer; if the worker was laid off because of a reduction in force; or if the employer abandons the worker, but not if he abandons him during the last three months of the contract. The Hearing Officer can also give the worker a transfer if the employer doesn't pay him, but only if the employer has violated the statute and the contract twice, or if the Hearing Officer finds that the worker has proved a violation “under an alternate theory of law and that transfer relief is appropriate.”

But wait; section 4947 goes on to say, “A transfer may be granted only to a foreign national worker who has complied with the provisions of the approved employment contract to the extent practicable under the circumstances, and for whom transfer relief is required in order to assure receipt of the benefit of the bargain under the contract.” This means that even if a worker proves his employer abandoned him or fired him illegally, or didn't pay him twice, he will be denied a transfer if he didn't follow every part of the contract, even if his employer didn't complain about it, and even if it didn't have anything to do with the employer's violation. It also means that a worker will be denied a transfer if he can get the benefit of his contract without a transfer; in other words, we will be telling the worker, “here are your back wages, now you must leave.” As a result, workers will be less likely to come forward to complain about violations. So this will reduce the number of complaints that workers file, not because there are fewer violations, but because the law gives him a choice: stay with your abusive employer, or go back where you came from.

Traps for workers who complain

Section 4964 states that if a worker violates “any subsection of section 4963,” he can be deported and all his claims for money damages and other relief are forfeited. Section 4963 has a long list of violations, including some very common ones, any one of which could subject the worker to deportation and loss of all his claims, such as:

- working before the contract has been approved, or after it has expired, even if under renewal;

- working for a secondary employer, even incidentally;

- engaging in any business activity other than for one's employer;

- giving any “misleading” information to any Department of Labor or Executive Branch personnel, orally or in writing, at any time;

- and being a minor.

Now, I do not condone anyone breaking the law, but those who do so must have a punishment that fits their crime. It is grossly unfair to tell a worker who has worked past his contract because his employer told him it was okay, “sorry, you are deported and cannot collect any back wages.” And the most common violation by workers-payment of their own application or renewal fees-subjects them to deportation under section 4964(d). It is common knowledge that many, many workers, especially housekeepers, pay those fees because the employer requires it of them. The Act would whipsaw these workers; first, their employer illegally makes them pay their application fees, then the Department deports them for doing so.

Restricted judicial review

One more brief point: Section 4949 of the bill would restrict judicial review to the record below. In other words, uneducated foreign workers, most without lawyers, will have to think of every possible legal argument and bring every piece of evidence when they have their hearing at Labor, because the bill will not allow the Superior Court to consider any evidence the worker did not know to raise in the Administrative Hearing. So much for alien workers getting a fair shake in the courts!

* * *

Any one of the above provisions, taken individually, raises legal and moral questions we should try to answer before this Act is signed into law: What would this provision actually accomplish? Is it constitutional? Will it cost the Commonwealth a lot of money and wasted time because of lawsuits? Is it a step forward in protecting workers, or a way of reducing complaints by punishing those who dare to complain? How will others-in the news media, and in Washington, D.C.-perceive and react to this provision?

Taken collectively, the provisions described above will have a tremendous “chilling effect” on a worker's right to complain. They will make the filing of a complaint not only an exercise in futility, but also a minefield where any past misstep will result in total denial of wage claims and speedy deportation. Taken together, these provisions will be perceived as mean-spirited and punitive, and will only reinforce the reputation of the CNMI as a place where workers are subject to rampant abuse.

I do not believe the member of the 15th Commonwealth Legislature want that to be their legacy in passing the Alien Workers Act. I do not believe it is their intent to punish workers for complaining, or to make it more difficult for them to get a fair shake from employers, or from the Department of Labor. Amendment of these provisions will take nothing away from this legislation; let's take the time to ensure the Alien Workers Act is fair and workable. I would be glad to assist the Commonwealth Legislature in this process in any way the members think may be helpful.

(Jim Benedetto is the Federal Ombudsman.)