Labor cases closed fairly and finally

The report that the Department of Labor had completed an important project to adjudicate its backlog of pending cases brought criticism from the usual sources. In order to keep the record straight, I am reporting the following facts.

[B]Closure of Labor cases[/B]

The Legislature provided a virtually free method for foreign workers to pursue claims against employers: they may file complaints with the Department of Labor. Like any other resident of the Commonwealth, a foreign national worker may also file a complaint in the Commonwealth or federal courts, pursue an action with the EEOC, try to gain the attention of the U.S. Department of Labor, or even pursue the National Labor Relations Board. No worker is limited in a forum; the Department of Labor is one option. A worker can choose that option or some other option.

The Commonwealth is not required by any constitutional principle to provide an administrative adjudication procedure outside its court system. The Commonwealth does so by decision of the Legislature because it is helpful to foreign workers and employers. In the Unite d States, there is no similar—virtually free—forum for the adjudication of guest worker complaints. In the State of Florida, guest workers must go to court to enforce their contracts. In Florida, the state does not pay investigators to look into guest worker claims. In Florida, the state does not pay hearing officers to hear guest worker claims. In Florida, the state does not provide an administrative appellate authority where guest workers can appeal adverse decisions. The Commonwealth system is a more progressive (and more expensive) system than exists in most other U.S. jurisdictions.

In the Commonwealth, a labor case is heard by a hearing officer. That hearing officer issues a written opinion. The decision of the hearing officer may be appealed to the Secretary of Labor. The Secretary issues a written opinion. When that process is finished, the case is completed and closed. The Department of Labor does not have authority to go further. The closure of the case is the Department of Labor’s final action.

[B]Collection on Labor awards[/B]

When it enacted PL 15-108, the Legislature decided on how labor awards should be collected. It did not give collection authority to the Department of Labor. The word “collection” does not appear anywhere in PL 15-108. Simply put, the Department of Labor was not given the authority by the Legislature to do collections work.

There are very solid policy reasons for this. First, the authority necessary to properly enforce awards of money damages involve very substantial powers. The Legislature decided that those extraordinary powers—to levy against bank accounts, sell property, and even jail those held in contempt—are properly limited to the courts. Second, all other residents of the Commonwealth look to the courts for enforcement of awards, and there is no reason why foreign workers should not do likewise. The Small Claims Court acts promptly and allows petitions to be filed for free by those who cannot pay. Third, enforcement of labor awards may involve bonding companies who are not necessary parties to Department of Labor proceedings. The bonding companies are entitled to due process, and the courts provide that.

[B]No guarantee of employer prosperity[/B]

The contract between a foreign worker and an employer in the Commonwealth does not provide a guarantee against business failure, bankruptcy, incompetent management, or embezzlement that causes a business to fail. In our free-market system, there are risks inherent in the employment relationship. Not every single employment relationship will result in full employment and full payment of wages. That is true for citizens as well as foreign workers. The Commonwealth has more protections in place for foreign workers than most jurisdictions in the U.S. We are a conscientious community, and we have provided a fair system. But there are no absolute guarantees. If the business fails, and the bonding company fails, and there is no one from whom the courts can extract the money to pay the award—by seizing assets or sending responsible persons to jail until they pay up—then the matter is at an end.

[B]Action against bonding companies[/B]

The Legislature has made the Department of Commerce responsible for the governance of bonding companies. The Legislature did not give the Department of Labor any licensing, disciplinary, or collection authority over bonding companies. There are sensible policy reasons for the Legislature’s choice in this regard. Bonding companies are businesses. The Commerce Department has expertise in the licensing of businesses. Bonds to ensure payment of wages of foreign workers are contracts. Those contracts are enforceable in the courts.

Wendy Doromal wants to know why the Department of Labor does not “go after” bonding companies. The short answer is, we have no authority to “go after” bonding companies. (One might similarly say why doesn’t the Department of Labor “go after” predatory lending to foreign workers, or thefts of property from foreign workers, or sales of drugs to foreign workers, and the answer would be the same. The Legislature did not give the Department of Labor the authority to do so.) We have authority to adjudicate cases involving claims between foreign national workers and employers (and in some instances between citizens and employers) and issue administrative orders. We do that very fairly and effectively. Our orders are rarely overturned in the courts.

[B]Worker delay[/B]

Foreign worker delay in filing claims is an important cause of the uncollectibility of Department of Labor administrative awards of monetary damages. Under prior law, foreign workers could wait up to a year to file their claims, and a great number did that. So, for example, a worker might have a contract that was approved in January, then in March, the business begins to fail; by April, the worker is not being paid, and in May, the business closes. The worker files a claim in December—right at the end of the period of time of authorized stay in the Commonwealth. That was the worker’s choice under the old law. However, because of the delay in filing the complaint, when the Department’s investigators pursue the case, the business owners have completed their closure and left the Commonwealth.

A second aspect of worker delay occurs after the complaint is filed. Commonwealth law allows a worker to remain in the Commonwealth (and to work) while the complaint is pending. Under those circumstances, a delay of several years may be nothing to complain about from a worker’s standpoint. And indeed, the Department’s records indicate that it is a rare case in which a worker asks to have a case expedited. Again, delay may result in the ultimate award being uncollectible.

[B]Reasons for the accumulated backlog[/B]

The Department of Labor has been criticized for the existence of the backlog of labor cases. This Administration did not build the backlog; we cleaned it up. The reasons for the accumulated backlog are many. Among them: (1) Any Administration has to establish priorities; ours was to clean up the backlog and to stay current. That is not to criticize the choices made by other Administrations. When money and personnel are scarce, difficult choices have to be made; (2) When the garment factories began to close in 2005, there was a wave of anxiety among garment workers and many filed claims as soon as they were laid off just to remain in the Commonwealth. A huge wave of claims was filed from mid-2004 to the end of 2005. In many cases, these claims were without merit. But all of them had to be mediated, investigated, heard, and all of the processes had to be completed. The Legislature gave the Department of Labor no extra personnel or funds to take on this task because there were other important public priorities—such as education, public safety, and public health—that made demands on available revenues; (3) The labor law in force prior to 2008 was written in 1983, and had been amended in patchwork fashion over the years. It did not provide the Department of Labor with the necessary flexibility to establish efficient procedures. That changed with the enactment of PL 15-108. And when it changed, we most definitely got better results.

Looked at in perspective, the number of claims is actually relatively small. From 1997 to 2007, the Commonwealth had about 200,000 worker years—that is individual workers working for one year. Out of those 200,000 employment relationships, a backlog of slightly under 5,000 complaints means that the vast majority of employment relationships proceeded without complaints.

[B]Relationship to repatriation[/B]

Irene Tantiado suggests that perhaps the Department of Labor backlog project might have been “designed to ship out all nonresident workers in the CNMI.” Setting aside the obvious point that there is absolutely no basis whatsoever for that accusation, I remind Ms. Tantiado that the Department of Labor does not “ship out” anyone from the Commonwealth. We arrange voluntary repatriations when foreign workers wish to return to their country of origin. The Department of Labor handles only voluntary travel home, and we provide tickets so that workers do not have to meet that expense—as they would in other U.S. jurisdictions (including Florida).

It is the responsibility of the Division of Immigration to deport persons who do not have status to remain in the Commonwealth. I venture to guess that you will find a considerably more stern hand in the “shipping out” department once the U.S. Department of Homeland Security takes over the immigration functions next June.

[B]Consultations[/B]

The Department of Labor recently sponsored a public meeting to discuss with members of the foreign worker community their suggestions for improvements in the Department’s procedures. We had a very good attendance at that session. Irene Tantiado was not involved in our discussions, although she wrote a letter to the editor about what she would like to see changed in our Labor procedures. I know that, at least while I have been Deputy Secretary, Wendy Doromal has never visited the Department of Labor and, to my knowledge, has corresponded directly with the Department of Labor only once—to instigate my removal as an employee of the Department of Labor, among other things. Her letter, in its reincarnated form, was re-sent to the Secretary of Labor by Reps. Tina Sablan and Edward Salas and published in the newspaper media not too long ago. All of Ms. Doromal’s communication have been made through the media. The foreign workers who came to our session provided valuable input; we are working out procedures to implement some of their advice. Consultation, rather than hurling accusations across columns of the news media, is often a better way to make progress. My door is open. My e-mail address is depsec2@gmail.com.

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[I]Cinta M. Kaipat is the Deputy Secretary of Labor.[/I]