Differences in Labor Policies

Policy differences with Rep. Sablan

Dear Representative Sablan:

You and I have vastly different positions with respect to labor policies in the Commonwealth. I spent over five years at the Labor Department as a hearing officer. My experience in handling cases involving both local and foreign employers and foreign workers persuaded me that our guest worker system was being manipulated by employers and employees in ways that were unfair to our U.S. citizen workers and were bringing discredit to the Commonwealth. I spent two years as a member of the 15th Legislature getting a comprehensive labor reform bill passed, which was signed into law as P.L. 15-108 last November. I have spent the last six months as Deputy Secretary of Labor implementing this law and working to make our system better. I strongly disagree with the labor policies you advocate, and I have said so publicly. It is regrettable that you have now chosen to attack me personally because of our differences over labor policies.

I make the following observations so we are clear about what those differences are:

OVERSTAYERS: You believe that foreign workers who have not been renewed by the employer who brought them to the Commonwealth, and who cannot find an employer to whom to transfer, should be allowed to remain in the Commonwealth as unemployed persons. I disagree with your position. Since 1983, our guest worker laws have required that aliens who come to the Commonwealth remain productively employed. There are good policy reasons for this requirement. Unemployed foreign workers require social services that create a financial burden on the Commonwealth; they often work without permits and undermine legitimate businesses that comply with the law and hire U.S. citizen workers. For that reason, the Labor Department publishes Overstayer Lists so that persons who are affected may come forward to correct the record or leave the Commonwealth voluntarily so as to preserve their right to re-enter.

NO-JOB SPONSORSHIPS: You believe that if a foreign worker pays to make an arrangement under which someone sponsors that worker by saying they are “employed”-although the sponsor has no real job for that worker and that worker does no real work for that sponsor-that the worker should be able to remain in the Commonwealth. I disagree with your position. “No-job sponsorships” are a fraud on the Commonwealth. In 2008 alone, the Director of Labor has denied about 1,000 applications, many for “no-job sponsorships.” Under a typical “no-job sponsorship” arrangement, the foreign worker pays the Labor Department fees, pays the bonding fee (for a bond that may not exist), and pays phantom taxes on wages not paid so that the Department of Finance will not crack down on the employer. The foreign worker then goes into the underground economy and finds his or her own job, or simply “retires” to live with a spouse or partner who works. The people who engage in “no-job sponsorships” on both the employer side and the worker side have evaded Commonwealth law, made false statements to the department, and sometimes testified falsely under oath. The Commonwealth's purpose in permitting guest workers to enter to work is to support the economy. People who engage in “no-job sponsorships” undermine that purpose; they do not support the economy. They simply seek the privilege of residence in the Commonwealth for which many, if not most, cannot qualify under visa rules.

TRANSFERS: You believe that there should be a “free market” in which there is no approval required when a foreign worker transfers from one job to another, so that a foreign worker can basically set up a new business and work for himself or herself if they want to do that. I disagree with your position. Under P.L. 15-108, all transfers must be approved by a hearing officer. The requirement of a careful but speedy review is very important in assuring that each foreign worker has a legitimate job with an employer who does not have past problems that might lead to taking advantage of the worker. Since the implementation of P.L. 15-108 in January 2008, this review process has resulted in numerous transfers being denied after a hearing on the ground that the proposed transfer did not comply with Commonwealth law. These transfer denials may involve illegal conduct on the part of the employer, the worker, or both. Every worker whose transfer is affected by reasons having to do with an ineligible employer is given another opportunity to find a suitable employer and transfer. There are good policy reasons for the requirement of administrative review of transfers. Transfers to employers who have previously exploited workers or who have no financial means to pay the worker is likely to lead to more labor complaints in the future, which require the department's resources to adjudicate.

PERMANENT RESIDENCE REGARDLESS OF WORK STATUS: You believe that foreign workers who have been in the Commonwealth for more than five years, regardless of whether they have worked during that time, should have permanent residence in the Commonwealth. You even introduced a bill to try to achieve such objective. I disagree with your position, and the Labor Department strongly opposed your bill. I firmly believe that the House's 15-2 decision to adopt the Committee Report to shelve your bill last Friday, August 22, 2008, is the right decision.

FOREIGN WORKERS WITH U.S. CITIZEN CHILDREN: You believe that any foreign worker who is given permission to enter the Commonwealth to work and has a child while in the Commonwealth should be given a free pass to remain in the Commonwealth forever. I disagree with your position. The U.S. does not allow this, nor does any other country. Why, then, should the Commonwealth allow this? The citizenship of children does not affect the work status of their parents.

FEDERALIZATION: You believe the federal government will solve our problems in the guest worker area. I disagree with your position. Our experience with the federal government during Trust Territory times-not all that long ago-was very disappointing. The U.S. has a very substantial guest worker problem of its own, which it has not yet solved. Immigration reform is stalled in the U.S. There is no reason to believe that federal officials are more capable than Commonwealth officials with respect to running the labor system in the Commonwealth. In my view, federalization will hurt foreign workers. They will be deported without regard to their contribution to the Commonwealth, and they cannot qualify for U.S. visas. You know that the availability of H visas will expire quite quickly by 2014 and then the Commonwealth will be competing against the entire continental U.S. for these visas. That does not hold out the prospect for more than a very few foreign workers to remain in the Commonwealth. The federal officials from DHS who visited recently expressed little likelihood that the U.S. would even consider processing H visas for the Commonwealth's foreign workers now, so maximum uncertainty lies ahead.

ALLEGATION OF BIAS: I take strong exception to your allegation that I am biased against foreign national workers. While I refuse to dignify your allegation by giving it more attention than it deserves, I will say that while I worked as a hearing officer, Federal Ombudsman Jim Benedetto sent Dr. Jack Tenorio, Secretary of Labor at the time, a letter commending me for my “proactive” work in assisting foreign national workers. I had a good professional relationship with employees of the Federal Ombudsman's Office. Moreover, I received several Appreciation Certificates from the Philippine Consulate in recognition of the assistance I rendered to the foreign national workers from the Philippines over the years. Foreign worker advocates routinely came to me for assistance in interacting with other units in the Labor Department and Division of Immigration whenever they encountered difficulties that they could not easily resolve. My record speaks for itself. Just because I favor strong enforcement of our Labor laws and don't agree with your views on Labor policies does not mean that I am biased against foreign national workers-no matter how often you or the special-interest groups you represent repeat this allegation.

COMMUNICATIONS WITH THE LABOR DEPARTMENT: I have been very open with members of the Legislature about the actions taken and policies developed by the Department of Labor. I have sent you (and other legislators) five Interim Reports on the implementation of P.L. 15-108 since re-joining the Labor Department in February 2008. I also invited members of your committee to visit the department. When you visited the Labor Department just recently, I asked you if you had any questions or concerns. You raised several issues, but none of the matters you set out in your letter except your misperception that there are termites in our landlord's attic. I have also made myself available to members of the Legislature. You have never raised with me any of the concerns expressed in your letter. I first learned of your letter to the Secretary when I read about it in the newspaper Saturday morning. It would appear that you released your letter to the press first, and then sent it to the department. All of this hinders a free flow of information between the department and the Legislature.

I hope that we can set politics aside and work together to make sure that U.S. citizen workers, Commonwealth employers, and foreign national workers are all treated fairly. The people of the Commonwealth and those who call the CNMI “home” deserve nothing less.

Cinta M. Kaipat
Deputy Secretary
CNMI Department of Labor