Labor announces a new transfer policy

Deputy Labor Secretary Cinta M. Kaipat announced a revised policy under which the department will handle cases brought by foreign national workers that are pending in other jurisdictions.

“When a worker files a case in Superior Court or federal court,” she said, “the Labor Department will deal with transfer and renewal rights in the same manner as we deal with any other worker. The fact of a pending case will not affect the worker’s rights unless a court or a hearing officer issues an order allowing the worker to stay in the Commonwealth past the expiration of their status.”

Under the revised policy, a worker who files a court case while their entry permit is current will be required to renew or transfer at the expiration of the current permit, as would any other worker. If the worker who has a pending case is successful in renewing or transferring, Kaipat explained, their employment will continue as would the employment of any other worker who transferred or renewed. Their entry permit will carry a new expiration date, and they will have status as granted by the entry permit.

However, if the worker does not renew or transfer, and their current permit expires, they will be processed for repatriation as would any other worker. CNMI law provides that a foreign national worker who is required to exit the Commonwealth is permitted to remain for up to 30 days beyond the required exit date in order to pursue civil or criminal claims or to pursue a violation of NMI labor law. In order to stay longer than 30 days, the worker who has a claim in Superior Court or federal court will need an order from the court extending the departure date “as necessary to ensure due process rights are protected.”

Cases pending with other agencies, such as U.S. Labor, the EEOC, the NLRB, or any other outside agency that has jurisdiction within the Commonwealth to enforce federal law, will be handled in the same way as cases pending in the courts.

Kaipat said that any worker who presents to Labor Enforcement a court order or an agency order staying a departure date will automatically be permitted to stay in the Commonwealth for as long as the court order or agency order is in effect. The Labor Department will ask the court or agency to notify the department when the case is over so that the repatriation process can be re-started as necessary.

Kaipat said that after expiration of an entry permit, the worker’s rights while remaining in the Commonwealth will be determined by the order of the court or agency. Any special conditions or requirements will need to be spelled out in the order.

In the transition process under the new policy, the Labor Department will adjudicate the transfer rights of all workers holding temporary work permits issued because of currently pending court or agency cases. This adjudication of transfer rights will have no effect on the court or agency case.

“Only the Department of Labor can grant transfer or renewal rights,” Kaipat explained. “Our processes with respect to transfers are entirely separate from claims before courts with respect to discrimination, or breach of contract, or any criminal matters.”

“There will be no effect on a court or agency from the way that the department carries out its responsibilities as to transfers,” Kaipat said. In the event that a worker has claimed damages before the Labor Department and also before a court or agency, the department will adjudicate any transfer claims and dismiss the other claims, deferring to the court or agency for those matters.

“There will be no double-dipping,” Kaipat said. “If a worker asserts damage claims before a court, we will defer to the court and dismiss any overlapping claims before the department.”

“This is necessary in order to make the department’s processes fair to all workers and to increase efficiency,” Kaipat explained. “Processing transfers should be done the same way and in the same time frame for all workers. There should not be a tactical advantage with respect to transfer if a worker elects to file a court case.”

Also, Kaipat explained, the department wants to act while the evidence is fresh and the employer is still present and financially sound. Waiting until the end of a court proceeding might mean that an employer disappears in the interim, and that is an undesirable result.

This change in policy will help the department stay current on its labor cases. “The department has completed the hearings on almost all of its 2007 labor cases,” Kaipat reported. “We have cleaned up our backlog in labor cases and now we are finishing up the 2005, 2006, and 2007 agency cases which we expect to complete soon. We will be entirely current and operating only under the new labor law within a few weeks.” [B][I](DOL)[/I][/B]