Labor warns against ‘retroactive’ renewals

The Department of Labor is planning to oppose future attempts of workers to “transfer” back into the positions they had left in order to search for new employment, according to Labor administrative hearing officer Jerry Cody.

Cody, however, stated that, as a practical matter, such situation may not occur often since the employer in most cases will not accept back a worker who had already declined an offer to renew his or her contract.

As a general rule, Cody noted, Labor maintains that a worker’s choice to transfer or renew employment must be made by the last day of his or her expiring work permit.

The hearing officer disclosed the plan in an order he issued yesterday, sanctioning nonresident worker Zhang Jianli with a penalty of $190 for causing the delay in the filing of his renewal application.

Cody also ordered the employer, Mirage Saipan Co. Ltd., to pay $80 to the Treasury for tardiness.

Cody reversed the Labor director’s denial of the work permit application submitted by Mirage to renew the employment of Zhang.

Zhang’s or Mirage’s fails to comply with the terms of the order may result in the imposition of further sanctions against them, including the revocation of the worker’s permit and additional monetary sanctions, Cody said.

The hearing officer, however, stressed that his ruling showing leniency is only limited to Zhang’s case and will not establish a precedent for future similar matters.

Labor records show that Zhang worked for Mirage as a sewer under a nonresident work permit that expired on Nov. 13, 2005. The employer filed a renewal application for him on Jan. 6,2006.

On Jan. 11, Labor denied the application, on the grounds that the renewal application was filed 54 days late.

Mirage and Zhang appealed.

At the proceeding, Labor’s administrative hearing office established that one week before the expiration of the prior permit, Zhang informed his employer that he did not want to renew his contract with Mirage.

Zhang stopped working on the expiration date of his permit—Nov. 13, 2005—and began to search for a new employer.

About 38 days into the 45-day transfer period, Zhang returned to Mirage and asked to be allowed to return to work. The employer agreed, but then took 16 days to file the renewal application.

The application was filed 54 days after the permit expired.

After hearing the testimony, Labor recommended that its prior denial be reversed, provided that appellants pay monetary sanctions for the late filing.

In his order, Cody said renewal applications are required to be filed on or before the last day of the existing permit.

Any applications filed beyond 30 days are denied, but the parties may appeal the denial to the Administrative Hearing Office, Cody said.

“This untimely filing was the fault of the employee, Zhang, who rejected Mirage’s offer to renew his employment contract and left the company in search of new employment, then returned to the employer 38 days later to request his job back,” Cody said.

Surprisingly, the hearing officer noted, the employer agreed to take the worker back, as it considered Zhang’s prior work history and found that he had been a productive worker.

Cody cited that recent months have shown a reduction of available jobs in the CNMI’s garment industry. Garment workers who decide to seek a new employer in the industry risk being unable to find a job within the 45-day transfer period, he said.

Cody said the department has expressed willingness to be lenient and agreed not to oppose the renewal, provided that Zhang is penalized for his conduct, as well as Mirage.

He said Labor stressed to Mirage that it is taking a lenient position only for this case and that the department does not favor allowing workers to engage in these type of “retroactive” renewals.

Cody said he agreed with the department’s position. In this case, he said, the fault should be apportioned between the worker and employer.

The primary fault lies with Zhang who did not return to Mirage until about the 38th day of the transfer period, he said.

The hearing officer also found that Mirage caused an additional delay by not filing the renewal application for 16 days.