Q & A #1 On PL 15-108

#1. Labor claim by former employee

You state that a former employee asked you to consent to a transfer, you did that, and then the employee filed a claim against you. This was a common problem under the old labor law, and it has been fixed under PL 15-108. Under the old labor law, employees who could not find a transfer employer within the time limit required under the law would simply file a claim against their former employer in order to stay in the Commonwealth and continue looking for a job. My recommendation is that you contest the case being brought by your former employee. You do not need a lawyer. Simply come to the Labor Department on the day that the case is scheduled and bring with you the documentation that you created within your company about this employee's performance.

Under the new law, there are no consensual or expiration transfers. All transfers are now administrative transfers in which the employee must file with the Department a declaration from a prospective employer before the process can go forward. A hearing officer determines within a very short time if it is a legitimate transfer and, if it is not, the employee is sent home. If it is a legitimate transfer, then the new employer is permitted to file the transfer papers. Under the new law, there are several protections for an employer against an employee who makes fraudulent claims.

First, all incoming foreign workers are required to attend an orientation session when they first arrive during which they will learn that there are penalties for making false claims.

Second, under the new law, employees are required to report unresolved disputes to the Labor Department within a very short time. If they do not, the presumption in any subsequent proceeding will be that there were no disputes.

Third, under the new law, the Labor Department offers a mediation service when foreign workers report disputes so that problems can be resolved quickly without the filing of a complaint. This service is free.

Fourth, under the new law, a foreign worker may stay in the Commonwealth for only 15 days after their permit expires unless they get permission from a hearing officer to stay to pursue a claim.

Fifth, The Labor Department has better procedures now (and has cleaned up the case backlog) so cases should be decided quite quickly after they are filed. In most cases, the Department will separate any claim for transfer relief and decide that right away so that the worker either is in legal status (they have found legitimate work) or not. If they are not in legal status, they know that they will be going home at the end of their claim, regardless of outcome.

#2. Medical care for foreign workers

You state that you are concerned about local workers who are not covered by the new medical insurance program for foreign workers. The Labor Department is also concerned about this. The Legislature enacted a medical insurance for foreign workers in what many hope will be a first step toward medical insurance for all workers. The regulations under the new law will be published by the Department of Public Health shortly. If this program works well over the next year, I expect that the Legislature will consider extending it to local employees as well.

#3. Residence status for education purposes

The Board of Education determines eligibility for attendance. I understand that the Board of Education is looking into the problem that you have reported. The Immigration Division is also looking into the problem you identified with respect to student visas. There have been quite a few complaints about this. I expect they will have a report for the Legislature by March.

#4. Illegal work permits

The buying and selling of work permits was a very big problem under the old law, and it was one of the reasons the legislature passed the new labor law. Now the Director of Labor has the needed tools to find illegal sponsorships more readily. Here is what is being done.

First, the labor Department has upgraded the LIIDS computer system. It is now linked with Rev&Tax and with the office that issues business licenses. This will allow all three arms of the Commonwealth government to act more quickly to stop fraud.

Second, the Director of Labor now has scanned images of all documents submitted in support of an application for employment contracts (that support work permits). He can now see more readily whether an employer is just a "front" or a real business. For example, if an employer asks for approval of contracts for 10 foreign workers and never employed a foreign worker before, the Director of Labor can look at that employer's tax records, bank records, and other evidence to see whether the business can afford to pay all the workers whom they have listed on their requests for approval. If the business does not have adequate evidence, then the requests for approval of employment contracts will be denied.

Third, the new law gives Labor Enforcement new powers to inspect businesses to find out if the employees they listed are really working and to inspect records to see if wages are really being paid. In the past, these enforcement efforts were hampered by a court decision that limited the powers of the Labor Department to go into employer premises for these reasons.

The Labor Department encourages citizens and local businesses to report any information about illegal employment practices or problems that hamper business concerns. Please e-mail depsec2@gmail.com with information that the Department should have. And thank you for taking the time to write.