Worker with no employer told to leave

An alien worker shelled out cash in China to be able to work on Saipan. But when he arrived on the island in March 2005, there was no job for him because his employer had closed business. Now, the Department of Labor wants him to depart from CNMI.

Labor hearing officer Jerry Cody said he is sympathetic to the situation of worker Yunhua Nan and feel it is most unfortunate that he was not alerted to the closure of his employer of record, Mariana Fashions, prior to arriving on Saipan.

“Nevertheless, I believe, as Hearing Officer, I am obligated to apply the terms of the Transfer Order, absent special circumstances to justify equitable relief,” Cody said.

Labor records show that Nan was given 45 days to look for a new employer. Min Woo Corp. agreed to hire him as a commercial cleaner, but his application was filed 46 days beyond the transfer deadline.

In affirming the Labor director’s decision to deny Min Woo Corp.’s application to hire Nan, Cody said Nan no longer has a valid work authorization to remain in the CNMI.

He ordered the worker to report to the Immigration Division within the next 10 days so that arrangements can be made for his repatriation.

Cody ordered Min Woo Corp. to produce an airline ticket for the use of Nan in going back to his country.

Nan testified during a Labor hearing that he paid more than $5,000 in China to get a job on Saipan. When he arrived on the island, he found out that his employer, Mariana Fashions Inc., was already closed.

The closure of Mariana Fashions and Dong Bang Fashions stranded 220 employees. During the Labor investigation, 106 of the 220 were repatriated. More than 40 workers were transferred to other garment factories either by consensual transfer or by reallocation by the Labor Secretary.

Nan was among a group of workers who had no consensual transfer employer ready to hire them. Labor gave these workers 45 days to secure employers.

Nan could not find an employer by the Sept. 9, 2005 deadline. He kept looking until Min Woo Corp. agreed to hire him. The company filed the application to hire Nan on Oct. 25, 2005, which was already 46 days late.

On the day of the filing, the Division of Labor approved a conditional grant of transfer for Nan to work at Min Woo Corp.

On Jan. 23, 2006, Labor denied the transfer application due to missing job vacancy announcement and untimely filing.

Nan and Min Woo Corp. appealed.

Cody said the hearing office has discretionary power to excuse parties’ failure to meet a transfer deadline “where the facts and circumstances make it fair and just to do so.”

In this case, Cody said, Nan made a good faith effort to find work but was unable to find an employer until about a month after the deadline imposed in the transfer order.

“Neither the employee nor employer have acted in bad faith; nevertheless, these facts do not fit the regular factual pattern that justifies setting aside the deadline and approving the transfer,” the hearing officer said.

However, Cody said, it is beyond his discretion to simply set aside the terms of the prior transfer order based on the facts in this case.