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.
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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