Worker given just 21 days to find new job

The Department of Labor gave a worker an abridged transfer period of 21 days after she failed to report the closure of her former employer’s business.

A nonresident worker whose employer ceases business operation normally gets 45 days to transfer to a new employer. However, Labor hearing officer Jerry Cody said Gemma T. Serrano should be given only 21 days for her delay in reporting the closure of her employer’s business.

Serrano formerly worked as a waitress for a karaoke bar under a work permit that expired on March 5, 2004.

Employer Isabel Barrios filed an application to hire Serrano one day after the worker’s 45-day transfer period expired. The Division of Labor denied the application for untimely filing and the employer then appealed the denial.

The Hearing Office later reversed the denial and instructed the Labor Division to resume processing the application.

On June 6, 2005, the division again denied the application based on the employer’s failure to correct several deficiencies, which had been noted in a deficiency notice issued on April 20, 2004.

At the hearing, Serrano testified that Barrios’ restaurant had closed sometime in August 2004. At the time, the employer did not report the closure to the department but instructed Serrano to search for another job and indicated that they would arrange a consensual transfer.

When Serrano found a new employer in April 2005, she tried but could not locate Barrios to arrange for a transfer.

Serrano considered filing a case against Barrios, but the department advised her to address her request for transfer through a denial case. At the recent hearing, Serrano requested transfer relief to allow her to seek a new employer.

Cody noted that the closure of the potential employer’s business and the subsequent denial of the application were not Serrano’s fault. Therefore, she should be granted transfer relief.

“However, I believe this worker should be faulted for failing to report the closure of her potential employer’s business and deliberately waiting for months for a permit or denial to be issued, when this worker was well aware since August 2004, that the pending job no longer existed. Although the responsibility to cancel the application was primarily the employer’s responsibility, this worker should be partially blamed for her delay in reporting the closure,” said Cody.

Therefore, as a penalty for her dilatory conduct, Serrano’s transfer period was limited to 21 days.

Cody also reminded Serrano that further transfer relief was discretionary, and that further transfer relief might be denied if the worker’s next transfer application was denied or cancelled.

“Accordingly, [Serrano] should ensure that her next application is complete and timely, and that the application is for suitable employment,” the hearing officer said.