Labor finds Star Marianas Air didn’t violate JVA declaration requirement

The Department of Labor has cleared Star Marianas Air Inc. of alleged violation of a Labor law requirement in connection with its job vacancy announcement.

Labor administrative hearing officer Jacqueline A. Nicolas dismissed the complaint filed by the Labor Enforcement Section.

In an order last Friday, Nicolas ruled that, at this time, Star Marianas Air is not required to submit an employer declaration as there is no showing of a violation of an NMI Administrative Code section that requires the declaration.

Nicolas said the Enforcement Section’s determination is silent on whether a citizen or permanent resident was hired—therefore it was unclear whether the employer declaration was required or whether the Administrative Code that requires such declaration was violated.

Under a section of the Administrative Code, in the event a citizen, a CNMI permanent resident, or U.S. permanent resident is not hired for the announced position, employers must file a declaration within 14 days after publication.

The declaration shall disclose who are the citizens and permanent residents who applied for the job, the action taken on each application, and a short statement of the reasons for rejecting any applicant who was referred.

No declaration, however, is required if a citizen or permanent resident is hired.

Nicolas pointed out that Star Marianas Air’s motion to dismiss, as well as testimony and exhibits from the hearing, demonstrate that a U.S. citizen was hired.

According to Labor records, Labor Enforcement Section alleged, in part, that in connection to a job vacancy announcement, Star Marianas Air failed to provide applicants Sara Frost and Berlyne P. Higgins with employer declarations.

Enforcement Section asked the Administrative Hearing Office to fine Star Marianas Air $2,000 per violation and that the company be ordered to comply with the employer declaration requirement.

Last May 14, Star Marianas Air, through attorney Joey P. San Nicolas, filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.

San Nicolas argued that there was no statutory jurisdiction and the declaration was not required because the company hired a U.S. citizen.

A hearing was held last June 11 at the administrative hearing office. Star Marianas Air president Shaun R. Christian, and three other company’s employees appeared.

Labor Enforcement did not file a response to the motion to dismiss but indicated its intent to proceed with the hearing.

At hearing, Nicolas placed the matter under advisement.

In her order last week, Nicolas denied Star Marianas Air’s motion to dismiss for lack of jurisdiction but still dismissed the case on the ground of failure to state a claim.

Nicolas said CNMI law requires employers to give qualified citizens, CNMI permanent residents, and U.S. permanent residents preference for employment in the Commonwealth over foreign national workers, transitional workers, and nonimmigrant aliens.

To effectuate this employment preference and ensure maximum participation, she said, notice of every vacancy in a full-time job in the private sector in the Commonwealth for which any person other than a citizen, CNMI permanent resident, or U.S. permanent resident may be hired “must be given.”

Generally, the employer gives notice by posting a job vacancy announcement on the Labor’s website, www.marianaslabor.net.”

Nicolas said employers must take appropriate actions on referrals or applications received in connection to the online JVA.

In the event a citizen, CNMI permanent resident, or U.S. permanent resident is not hired for the position, employers must file a declaration.

Nicolas found that Star Marianas Air posted a job vacancy announcement on the Labor website for the position of customer service specialist last Feb. 18. The JVA advertised five openings. The opening date for the JVA was Feb. 18; the closing date was March 5.

Frost and Higgins responded to the JVA last Feb. 19 and 25 respectively.

On March 9, Star Marianas Air hired Fradley Jepen, a U.S. citizen, for one of the positions.

Subsequently, the company’s human resource specialist began to call applicants to schedule an interview.

With respect to Frost, the HR called to schedule an interview on two occasions.

Despite being called on two different days and two different times, there was no answer at the contact number provided. Accordingly, Frost was never interviewed or hired.

With respect to Higgins, HR called three times to schedule an interview.

On the third call, an interview was scheduled for March 21. Ultimately Higgins did not show up for the interview. Accordingly, Higgins was never interviewed or hired.

Nicolas said that, according to HR’s testimony, no other hires were made in connection to the JVA, but that the hiring process is ongoing.