Wednesday, January 23, 2008

PL 15-108 Is Progress. Progress Is Incremental

Below is Senator Frica Pangelinan's Opinion piece on PL 15-108 which was published by the Saipan Tribune. Click here.

Opinion
Tuesday, January 22, 2008

Notes From the Hill

'PL 15-108 is progress. Progress is incremental.'


By Maria Frica T. Pangelinan
Special to the Saipan Tribune

These are the thoughts that evolved out of my research on Public Law 15-108 and ultimately motivated my support of its enactment. I felt it important to share with you as I believe that information is an essential component of constructive progress.

The dynamics of our labor market affect many, not just people in the Commonwealth. The families of citizens, permanent residents and foreign nationals who live on the U.S. mainland and in home countries are influenced as well.

The original labor laws were created on the premise that certain foreign nationals would fill jobs that could not be filled by our resident population. There were two reasons. First, we felt that our small population would not be able to provide a large enough labor pool to fully supply the needs of the industries we were trying to attract. Second, we needed time to prepare ourselves with education, training, and experience, for full participation in the workforce. After 30-plus years, we are more than ready. Even so, we have been slow to acknowledge and address the “brain drain” of citizens leaving our islands. Our investment in the secondary and postsecondary education of ourselves and our young people is being lost as they migrate out of the Commonwealth. Some of our college graduates never even return from the mainland, simply entering the workforce there. We are about a half a generation behind in coordinating the provisions of our labor laws with these realities.

The authors of the bill took on a huge task. Not only were the old laws and regulations complex, they were flawed and fragmented. The original purpose of the Nonresident Worker Act had been lost in a morass of piecemeal amendments. There were loopholes and weaknesses that allowed abuses, not just by employers, but by employees as well. It was a thankless job, not likely to please everyone, and fraught with political and social risk. Nonetheless, led by Rep. Cinta Kiapat, they took on the task of reforming the entire Act, something that no legislators before had been willing to tackle. For this, they have my respect. They did their jobs.

The new law and the accompanying regulations are still complex. Laws that deal with the movement and employment of people across international borders deal with complex issues. That being said, the new law is more streamlined and organized than the old.

PL 15-108 does not address every issue I would have liked. The exit provision makes no allowance for foreign nationals who have lived and worked in the Commonwealth for many years, some with children who are U.S. citizens. Some have no home or family to return to in their home countries during the newly required exit period. Although the regulations provide an alternative exit period of 60 days for some foreign nationals employed by qualifying employers, I do not yet see a clear solution for this issue and it needs to be addressed.

I would also like to revisit the new medical insurance provision. CHC struggles under the burden of being owed millions of dollars for services rendered. This is not a problem created solely by non-payment of medical services for foreign nationals. There are others in the Commonwealth who do not have medical insurance. I would like to explore the possibility of expanding the role of the newly created insurance pool. Perhaps by eliminating self-insurance we could build a larger insurance pool, insuring CHC gets paid more often, an additional benefit for the entire Commonwealth. I am continuing to study this issue.

There is also the issue of foreign nationals who enter the Commonwealth under tourist visas and intend to work. Some of them know they are breaking the law, some do not. The screening procedure used by our Immigration officers at the point of entry should take this into account. At this point I do not know if the current procedures effectively identify these persons, or how the situation is handled. I plan to explore this with the Director of Immigration.

Over the years there has been an accumulation of claims, and court cases pointing to loopholes and weaknesses of the old law. Most people, businesses, and government employees, are honest, hardworking, and law abiding. However, some employers and employees have taken advantage of loopholes, or chosen to break or circumvent the law. Next are the hard lessons we have learned while administering the local labor and immigration laws. People have been taken advantage of and lives have fallen through the cracks. There were as many as 20,000 foreign nationals employed in the Commonwealth in 2007 and the number of tourists was almost 400,000. Only a small number of human trafficking cases occurred during that period. The fact remains, however, that each case is a tragedy for the victim and their families. Every loophole we close is progress toward ending this horrendous practice.

The authors of PL15-108 took these issues and more, into account, integrating input from the Attorney General's Office, the Department of Labor, the business community, private citizens, and many others.

Below is an overview of labor and related issues in the Commonwealth.

Labor Problem

1. A government with too many employees

2. Government revenues are shrinking

3. Average wages are higher in the public sector

4. Relatively high unemployment among residents

5. Highly skilled and educated citizens living on the mainland

6. Residents have problems finding private sector jobs

7. Poor working and living conditions of some foreign nationals

8. Human trafficking

9. Lack of health benefits for foreign nationals who are not workers

10. Abandoned and unpaid foreign nationals

11. CHC has difficulty getting paid for services provided

Solutions

1. Reduce the number of public employees

2. Reduce expenses (payroll), raise revenues

3. Equalize wages in the private and public sector

4. Increase local employment in the private sector

5. Increase employment opportunities in the private sector

6. Improve the system of identifying and matching qualified residents with private sector employment opportunities

7. Improve the inspection and enforcement power of DOL

8. Close loopholes in the foreign national labor laws

9. Mandatory health benefits

10. Improved bonding/increased enforcement by DOL

11. Mandatory medical insurance; disqualifying employers who do not pay medical bills for their foreign workers


PL 15-108 creates rewards for employers that exceed statutory standards and increases the severity of penalties for those, including government employees, who do not uphold the law. The new law is said by some to increase the administrative burden on local businesses. Yes, it does. Hiring a new foreign national is now a special and final option for an employer, and only when it is a documented certainty that no citizen, permanent resident, or foreign national already in the Commonwealth is willing and able to fill the position. This is the same premise on which the Federal guest worker programs are based; to augment the resident workforce, not displace it.

Our entire labor market is shrinking. Payroll is usually the largest expense of a business. The private sector has always adjusted to the economy, increasing and decreasing the number of employees based on demand.

Now, whether by design or by necessity, public sector employment is decreasing also. Payroll is the largest expense of the government as well. Reducing the number of employees while controlling the wages of those who remain must be part of the government's path to solvency. Some who leave the government will retire, some will go off island for employment, and some will depend on social services and family for a means of support. However, many will be searching for private sector employment. We must now work even harder to connect our resident work force with the available jobs.

Part of the solution is to improve the process by which we identify and target career opportunities in the private sector for citizens and residents of the CNMI. The faulty stereotype of all private sector jobs offering only minimum wage is challenged by a study recently completed by the Office of the Public Auditor. During a twelve month period ending August 2006, over 800 nonresident permits were issued for positions that pay over $10 per hour. Many of these positions require the same skills and experience as public sector jobs. It has been reported that some of these positions are protected by a treaty provision and are not available to citizens and permanent residents. I will work with the OPA to verify these reports.

The report is available at: http://www.opacnmi.com/reports/053007%20Jobs%20Study%20Committee%20Final%20Report.pdf

High unemployment among our residents as well as losing them to mainland life is unreasonable in light of the findings of the OPA's job study. Actively recruiting qualified residents for positions should be a priority for private sector businesses.

Employers certainly recognize that by hiring citizens and permanent residents, they are keeping money circulating in the economy that would otherwise be lost to foreign countries in the form of remittances. Keeping these dollars in the Commonwealth takes advantage of the multiplier effect in our economy and this benefits everyone.

Change always causes angst and uncertainty. Some say that PL 15-108 is pointless, as it is soon to be overridden by federal immigration statutes. I respectfully disagree. We have identified problems with our labor laws. We legislators have a duty to correct them. "If “federalization” comes, in its current form, it will not become effective for a year after the bill is signed into law. At a minimum, we have a year during which we continue to be directly accountable for how we deal with identified problems. As our great American hero, the Reverend Dr. Martin Luther King Jr. once said: "The time is always right to do the right thing”.

Does PL 15-108 solve all of our labor problems? No. There are larger economic factors, some global, that no law can fix. Our labor market is smaller than in the past and there will be fewer foreign nationals in the Commonwealth, but those that are will enjoy an improved quality of life because of PL 15-108.

PL 15-108 is progress. Progress is incremental. I will continue to monitor the implementation, and work to address the issues I have identified, as well as others that may arise.

(Maria Frica Pangelinan is a senator in the 16th Legislature.)

3 comments:

Tushar said...

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UN.GIFT was formally launched in London on 26 March 2007. It is designed to have a long-term impact to create a turning point in the worldwide fight against human trafficking. 27million people are trafficked each year. UN.GIFT intends to take action against human trafficking in all its manifestations – commercial sexual exploitation, bonded labour, organ trade, camel jockeying, forced marriages, domestic labour, illegal adoption, and other exploitative work – through creating partnerships at a global level with all sectors of society.

The ultimate goal of the Global Initiative is to contribute to ending human trafficking– estimated to have a total market value of about $32 billion worldwide. UNODC has a two-pronged strategy for achieving this goal – increasing public awareness of the problem and coordinating existing but disparate efforts by international and national groups, governments and non-governmental organizations and by concerned individuals to end the practice.

Numerous regional GIFT events will culminate in Vienna with a Global Forum against Human Trafficking from 13th to 15th Feb 2008.

The objective of The Vienna Forum is to raise awareness, facilitate cooperation and partnerships among the various stakeholders. It will bring together representatives from Member States, UN system organizations, other regional and international organizations, the business community, academia, non-governmental organizations and other elements of civil society. The Forum will allow for an open environment to enable all parties involved to take concrete steps to fight human trafficking, within their spheres of action.

The Forum will be a catalyst for solution-seeking ideas and address three overriding themes on human trafficking:
1.Vulnerability: why does human trafficking happen;
2. Impact: human and social consequences of human trafficking;
3. Action: innovative approaches to solving complex problems.

The Vienna Forum will also consist of plenary sessions and a variety of panel discussions and workshops especially designed to address the multi-faceted dimensions of human trafficking.



Tushar

The Saipan Blogger アンジェロ・ビラゴメズ said...

I like your new turtle

Ron Hodges said...

Senator - I have never heard anyone group you with the bad guys here and many have only kind things to say about you. While this law has some strong points for the CNMI, the bad points are evil. 12k marched against this law and 130 marched for it even with free beer and the bad guys represented. The Senate will likely pass this within the week. Please reconsidered revisiting and revising this bill. Federalization will be passed regardless of what you or I think about it anyway. You must just ask yourself, "who will you stand with". My number is 233-1144 and they will give you my cell if you would like to discuss this further.

I will also leave comments made about this Willen article pasted from Wendy's blog.

Willens Misinterprets H.R. 3079

Howard Willens, the governor's special legal counsel, in a forum held at Bruce Bateman's Porky's Bar, claimed that the H.R. 3079 will force all foreign contract workers to leave after two years. Again, having just come from Washington, D.C. and having discussed this with staffers from the Senate and House Committees, I can only say once again this information is wrong. I suggest that he contact the committee staffers to clarify his misunderstandings. I assume he would have read this letter to Governor Fitial from Senator Jeff Bingaman, Chairman of the Senate Committee on Energy and Natural Resources. He could also contact Federal Ombudsman Jim Benedetto for clarification. In a recent letter posted here Mr. Benedetto made corrections to the same misinformation including these remarks:

"The Commonwealth will have a say in whether the Transitional Guest Worker Program is extended... The Bill provides that the U.S. “Secretary of Labor, in consultation with the Secretary of Homeland Security, the Secretary of the Interior, and the Governor of the Commonwealth, shall ascertain the current and anticipated labor needs of the Commonwealth and determine whether an extension, in up to a 5-year increment, of the provisions of this subsection are necessary to ensure an adequate number of workers will be available for legitimate businesses in the Commonwealth.” The transition period can be extended indefinitely if a genuine need can be demonstrated.

The Bill also provides that any alien “who is lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be considered authorized by the Secretary of Homeland Security to be employed in the Commonwealth” until their contract runs out, or two years after the transition period effective date, during and after which their employers may sponsor them for H visas, or they can participate in the transitional guest worker program.

Alien workers may also benefit from the CNMI’s exemption from the numeric caps on H workers. The rest of the country only gets a certain amount of H worker visas, so businesses must compete to get them. After the Bill passes, CNMI employers will be able to apply for all the H worker visas they need; the cap doesn’t apply to us during the transition period (which, as noted above, can be extended indefinitely if necessary). And, skilled workers brought in under H-1 visas can apply for lawful permanent resident (LPR) status after five years and get a “green card.”

Of course, one of the greatest benefits the Bill would extend to alien workers participating in the transitional guest worker program is the right to freely transfer from one employer to another, at will, as long as the new employer is also in a segment of the economy the Secretary has determined is in need of alien workers. So, if a worker isn’t being paid, he or she can simply go to another employer, without risking the loss of status and subsequent deportation the current law threatens them with.

The current law, on the other hand, ties each worker to a single employer, restricts workers’ right to complain to a very brief period, and threatens a worker who complains with loss of his or her claims and deportation if Labor finds the worker has committed any of a number of violations unrelated to the subject of their complaint.

For example, under the new law, if a guest worker files a complaint, he could be asked whether he had complied with all the provisions of his contract; if he had not, he could be denied transfer and sent home. He could also be asked whether he had engaged in any work during the period his employer wasn’t paying him, or after his employer had abandoned him; whether he had ever paid his own application fee or renewal fee; whether he had ever given any misleading information to Labor or any government employee, orally or in writing; and whether he had worked for his own employer before his contract had been approved, or after it had expired, even if he was being renewed and his employer told him it was legal to do so. If he answers “yes” to any of those questions, it would be “grounds for deportation . . . and forfeiture of all claims” under the new law. We should all be very concerned about whether these parts of the new law will have a chilling effect on a worker’s right to file a complaint."