Letter to the Editor: Open letter to the citizens of the Commonwealth
Friday, March 26 2010 00:00
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I OPPOSE the federal ombudsman’s interference in local political affairs, and I oppose her efforts to de-stabilize the Commonwealth’s workforce at a time when our economy most needs stability and certainty.

I have explained my reasons to the Legislature in urging the enactment of P.L. 17-1, the bill that conformed our Code to federalization of immigration and deportation, which the ombudsman tried unsuccessfully to derail. I now want to explain these reasons to our citizens.

The serious problems with the ombudsman’s positions can be explained by reference to some basic questions:

1. Should foreign workers be able to use the umbrella permit issued to them by the Department of Labor to “take any job” as the ombudsman recommends?

My answer to this proposition is an emphatic “no.” I have two reasons for this.

First, when a foreign worker can “take any job,” the most immediate effect is to cut out our qualified citizens from the opportunity to compete for that job. That should not happen. We did not invite foreign workers to the Commonwealth to squeeze our citizens out of jobs. We invited them to augment our workforce as necessary.

Second, the ombudsman’s position is contrary to P.L. 110-229, the federalization law, which is intended to increase citizen employment in the Commonwealth. As the Senate Committee explained in its report: “Section 102(a) expresses Congressional intent to...[extend] the INA with special provisions for...providing opportunities for locals to work.” The law directs the Secretary of the Interior “to assist employers in the Commonwealth in securing employees first from among citizens and nationals resident in the Commonwealth and, if an adequate number of such [local citizen] workers are not available, from among legal permanent residents, including lawfully admissible citizens of the freely associated states.” Emphasis added. The ombudsman’s efforts are devoted exclusively to putting foreign workers ahead of U.S. citizens in the employment queue. She should not be doing that. It is contrary to the express intent of the law.

2. Should foreign workers be given special assistance to remain in their existing jobs through renewals that are not authorized by the Department of Labor?

My answer to this proposition is “absolutely not.”

Every renewal of a contract is an opportunity for a qualified citizen to compete for the job. That is the intent of our law. By advocating renewals without any opportunity for citizens to compete — backed by a real job advertisement program and enforcement capability — the federal ombudsman is stealing jobs from our people.

3. Should foreign workers be allowed to remain in the Commonwealth until November 2011 regardless of whether they violate Commonwealth law or the conditions of their permits? The ombudsman says the Commonwealth cannot revoke the permits it granted.

I say that the ombudsman’s position is both bad law and bad public policy. I have four reasons for this.

First, every foreign worker who has an umbrella permit was required to appear personally, present sufficient identification, and sign a contractual agreement to abide by Commonwealth law. The umbrella permit specifically provides: “I, the person to whom this permit is issued as named and identified above, agree to the permit conditions set out above and acknowledge as a condition of the issuance of this permit allowing my employment in the Commonwealth that every aspect of the issuance, modification, or termination of this permit is governed by Commonwealth law and is administered by the Commonwealth Department of Labor.”

Like everyone else, foreign workers are to be held to their contractual agreements. If any worker had refused to agree to the terms on which the umbrella permit was issued, we would not have given out the permit. The federal ombudsman is, in effect, saying to foreign workers that it is okay to break the contract that you entered into. That is not right.

Second, every year a few foreign workers commit serious crimes and are convicted. I say we can revoke the umbrella permit of anyone who commits a crime. We are not required to tolerate criminal behavior and allow those people to have the advantages of the guest worker program.

Third, some aliens lied on their applications for their umbrella permits. They were never entitled to an umbrella permit. A permit that was issued based on representations that were not true can be revoked, and a person who deliberately made a false statement to a Commonwealth official has violated Commonwealth law. There is no reason that these people should be allowed to keep their permits in force.

Fourth, unemployed workers can be a significant burden on the Commonwealth. We have set out conditions in the umbrella permit under which we will take the risk of allowing an unemployed worker to remain for enough time to find a job — the worker has to agree to meet certain conditions during the time he or she is unemployed and they have to report back to the Department on the report-back date in the permit so we can assess the situation. We have not agreed to take that risk without careful consideration with respect to anyone who has an umbrella permit. If a worker has not found employment for six months, the likelihood of locating employment in the future is very low, and we are not required to allow that person to keep a permit over the long term.

4. Does federal law take the place of all of the Commonwealth’s labor laws?

The Attorney General and the Special Counsel to the Governor have both answered this question in legal terms.

The ombudsman is wrong. Federal law and Commonwealth law operate in parallel. There are important practical points to be made here.

First, Commonwealth law requires that employers pay medical expenses of foreign workers. This is a very important protection for Commonwealth citizens. If foreign workers can flood CHC with unpaid bills by accepting treatment and then just walking away from the bills because they do not have money to pay, then all our citizens suffer. The hospital will not have the funds to provide quality care for citizens. It is struggling now. The added burden of more unpaid bills would cause a serious decline in its capability. We are required by federal law to take aliens into the hospital. We need the protection of requiring employers to pay these bills. We are entitled to have that protection through our Commonwealth laws. There is no such protection under federal law.

Second, Commonwealth law requires bonding of an employer’s obligations for wages, medical expenses, and repatriation tickets. The federal system has no such protection. If there were no bonds, then there would be no alternative source to tap when employers fail to pay and most court cases would be fruitless. This is particularly true when an employer is a foreign-operated company that can just leave the Commonwealth and strand workers who have no recourse but to rely on Commonwealth benefits programs.

Third, Commonwealth law requires health examinations. Every year, a few foreign workers turn up with drug-resistant tuberculosis and other infectious diseases. The health exams catch these diseases, which can spread easily in a small island community and can cause very significant costs to the Commonwealth’s health care system. Under federal law, there is no such protection for our citizens.

Fourth, Commonwealth law allows employment disputes involving foreign workers to be resolved in administrative hearings which are relatively quick and inexpensive. Under the federal system, there is no administrative dispute resolution system. The federal system puts all these disputes into state courts where the burden is on the other users of the court system and the taxpayers of the jurisdiction who have to pay for the court system. In the Commonwealth, if the courts had to adjudicate the several hundred employment disputes involving foreign workers each year, other cases involving the rights of our citizens would have to wait longer and longer to be resolved and our court system would be more expensive to operate.

The Commonwealth government has very important interests at stake in the labor field. We will continue to insist that our citizens not be walled out of employment opportunities by federal labor initiatives. And we will prosecute where necessary to ensure that our taxpayers do not have additional burdens thrust upon them as a result of the transition program. There is no need for this to happen. Our laws have now been conformed to U.S. immigration requirements, and all references to immigration and deportation have been removed. We look forward to mutually supportive work with the Department of Homeland Security on these matters.

Respectfully,

CINTA M. KAIPAT
Deputy Secretary of Labor