Friday, November 16, 2007

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

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