233. CNMI Emergency Regs on ISLA

I attended the CNMI Bar Association luncheon on 5/13, 2008 and listened to a presentation by Deanne Siemer about the recently issued emergency regs. I also read the regs which Deanne provided in advance.

There are some interesting, and troubling, aspects to what's going on just now as our current administration responds to ISLA, P.L. 110-229 (chapter 7) [ f/k/a S. 2739].

1. Deanne's most outrageous statement was probably her boast that she's urging vociferously that Governor Fitial fight P.L. 110-229 with litigation in court. She thinks the law is terrible because from her viewpoint it is intended to shut down the CNMI's economy and prevent our recovery and any possible move in that direction.

Her unstated view of our economic recovery is essentially-we will get rich off the backs of poor foreign workers. We need cheap foreign labor for any economic success. We are incapable of finding a niche in any economic market if we can't take advantage of cheap, non-citizen, workers whom we can abuse and misuse.


Photo by Angelo Villagomez

Although she reiterated several times how horrible she thought the new federal immigration law is and how she is urging Governor Fitial to litigate (and mentioned that she herself is a litigator), I didn't hear her state any legal grounds upon which the law would be challenged.

2. Deanne went through the emergency regs. The government has come up with a number (22,417) that represents an assessment of how many aliens are in the CNMI who entered or renewed under a permit that would entitle them to work. Not all of these entered as "contract workers." For example, an IR spouse would be entitled to work and would be counted in this number. Trafficking victims, regardless of how they entered, who have been given special P permits are included. Missionaries are included, etc.

This number (22,417) is the cap that is now in place under ISLA, according to Deanne. (ISLA contains a provision that says the CNMI cannot increase the number of alien workers once the law becomes law, which was 5/8/2008).

3. In order to comply with the cap over the next year, the regs use a "body for body swap" method. One alien out who is counted in the number means one can come in. This will keep the CNMI from going over the cap.

4. The devil is in the details. When I read these emergency regs before the CLE presentation, they seemed almost innocuous, and in some ways, good. When Deanne explained how they would be interpreted, I began to see through the veil of nice words.

A company may claim the "slot" for the body-for-body-swap if they repatriate an alien worker. BUT THE WORKER DOES NOT HAVE TO BE THEIR WORKER! The company has 90 days to claim the slot.

If I understood correctly, a company can repatriate aliens facing deportation proceedings and claim the slot. Wendy Doromal noted in a recent blog post that the newest Labor policies call for deportation of workers with unsatisfied judgments (absent a court order providing for their staying and getting a transfer) and she asked on her blog, Unheard No More, where the money would come from to deport workers--well, here's where it will come from. Companies that want to bring in new workers can get a slot for every worker they repatriate.

I fear this will encourage companies to "help" aliens return against their wills and then claim the slot.


5. It wasn't quite clear to me whether the company who repatriates an alien owed money by a former employer would have to pay for the judgment, but at one point Deanne did seem to say that employers might be able to buy the voluntary departure of aliens owed money by paying the money owed. According to her, there are many aliens owed small amounts of money (she mentioned $200 or $300).

It would be much more helpful if companies were required to pay the judgment through court (or even DOL) and there is verified payment--not just some signature by the foreign worker (who may be pressured or tricked into signing a complete satisfaction in order to get some/any money).

6. There was some talk about "voluntary" departures. This was in the context of aliens overstaying, who might be given a one-time opportunity to voluntary depart without any stigma or deportation effect, meaning they could come back with a job, if possible. Companies who want to secure the slot of such an alien would pay for the repatriation.

Deanne said that under U.S. law there is a complete ban on return if you are deported. And she talked glowingly of the DOL website with job listings that aliens in their home countries could peruse in order to secure a means of returning. I would need to check further on all of this, and for now remain skeptical.

7. She mentioned that companies could get slots in other ways, through a point system for unclaimed slots, a lottery, for "anticipated projects" and, in some cases, just because the Labor Department gives them slots within DOL's discretion. To me, this seemed to indicate that DOL would continue to operate in an arbitrary and capricious manner to the benefit of some and detriment of others.

8. Temporary absences by foreign workers (for medical leave or vacation) will not be counted as a departure/repatriation. This seemed sane and reasonable.

9. Deanne continued to praise CNMI PL 15-108 as a wonderful law designed with the possible loss of immigration in mind. I've blogged a little on PL 15-108 and believe it to be fundamentally flawed-attempting to preserve a two-tiered system where locals are "trained" for management with higher paying jobs while aliens do the real work and get paid a pittance. What I found interesting was how NOW Deanne is saying this law was supposed to be in anticipation of federalization of immigration, not in lieu of it, when originally it was touted as a reason why the U.S. should back off of its attempt to apply U.S. law to the CNMI.

10. Deanne said there are about 1,900 illegal aliens in the CNMI. She foretold a complete quagmire in the transition, believing the U.S. will be incapable of handling all of the immigration caseload.

I didn't believe her. Right now, one judge in Superior Court handles the deportation calendar. I don't see why Judge Munson in federal court would be less capable. Nothing about the structure of the AG's office and DOL make me think they have a lock on doing it right and the U.S. would automatically screw up.

11. The periodic exit requirement of P.L. 15-108 will not be enforced, according to Deanne. It wasn't clear to me if that was throughout the period leading up to the transition, or if it only applied for only the first six months, subject to being enforced especially if the start date of the transition period is delayed.

12. Deanne said the DOL is honoring "two year" contracts, so that alien workers can, if their employers agree, renew now or at their regular renewal date for a new 2 year period of work.


I need to think about all of this more and get a better handle on the details. I don't think the emergency regs are completely bad. I think they at least nod at following the letter of P.L. 110-229, but I don't think they're quite in keeping with the spirit of that law.

Guess we'll see how things play out.

173. The New CNMI Labor Law (P.L. 15-108)--part 2

I'm still tracking through the new labor law, and I'm still on the purposes. (Part 1 is posted at Post # 160.) There are some good statements in the purposes with which I agree, and a few more subtle assumptions with which I disagree.

On the good side, these statements:

"...a minimum wage rate may not be sufficient to attract citizens and permanent
residents to take a job for which they are qualified."

And this:

"Wage rates will not rise so long as cheap foreign labor is available."

And this:

"The Commonwealth has the responsibility to provide fair employment conditions
for foreign nationals, to use their labor for the purposes of economic growth
and stability for which it was intended, and to regulate labor practices in
order to protect against potential abuses."

But then the law seems to eschew the most obvious means of addressing these issues: 1) a higher minimum wage; 2) a real and enforced moratorium / limit on the number of foreign workers in the CNMI; and 3) application and enforcement of all federal labor laws; promotion of unions; and, most importantly, treatment of all workers equally.

The purposes section promotes the idea that locals need to have less competition to get the jobs they "should" have, and those jobs should be the ones for which they are "educated"--the management and professional jobs.




Some of the problems in this part of the purposes section:

"The Commonwealth's goal is to establish a regulatory environment so that jobs
are available for its qualified high school, college, and graduate school
graduates."

The market place generally favors the more educated worker with higher wages, but the under-educated (those who have dropped out of school before getting a high school diploma) can contribute valuable skills and labor to a healthy economy. They should not be ignored. The policy of the government should not continue this prejudice against blue-collar work!




Another problematic statement of purpose:

"If the job is reserved for citizens and permanent residents, then the
competitive economy will cause the wage rate to rise to a level that citizens
and permanent residents find acceptable."

The CNMI Labor Department has failed to classify jobs for the past 25 years, and has allowed employers to hire foreign workers at minimum wage for jobs like accountant and engineer! We do not need to "reserve" jobs for the CNMI local residents to push up the wage. We do not need to perpetuate a two-tiered system of labor-with local workers in designated (high-paying) segments and foreign workers in the other (low-paying) jobs. This type of system invites abuse. The preference for U.S. and permanent resident workers is legitimate and needs to be enforced. But we need to enforce that preference in all job categories, and not create a two-tiered system of labor. We need our work force to work together, not separately.

There is another way of addressing the issue of artificially depressed wages in professional, management, and skilled jobs. Besides increasing the minimum wage-which encourages greater participation by everyone in the labor market, the CNMI Labor Department can set ranges/brackets of reasonable wages that must be offered for certain types of jobs if foreign workers will be used. This is less problematic on an equal protection basis than barring foreign workers outright from jobs. If our minimum wage is 50% of the U.S. minimum, then the range for an accountant's position could be 50% of what accountants earn in the U.S. When the job is advertised, resident workers can see the potential for greater earnings than minimum wage. This doesn't make us competitive or on par with the lure of the U.S., but is does provide for a balanced and consistent wage structure. And this benefits everyone. Many people who live here want to stay and willingly earn less than in the U.S. in exchange for the many beautiful and beneficial offerings the CNMI offers. The resident work force that is attracted to the higher paying jobs in the local economy can get these jobs if they want.



And yet another problem in the statement of purpose:

"The overall guiding policy with respect to foreign national workers is to
provide for a stable work force and protect due process rights without creating
entitlements."

It is that last bit--without creating entitlements--that I find troublesome. Our government has let in a huge number of alien workers over the past quarter century. They are not automatons, robots, who work and earn their pay and have no human life. They are people, with relationships, children, ties to our community. This bit of the purposes ignores the reality that has already occurred from the decisions of our leaders to allow this long-term alien population in the CNMI. Their children are U.S. citizens, born here. The children have entitlements that are shared by all U.S. citizens. These children, upon reaching 21, can petition their parents into the U.S. for green card (immediate relative) status. These children will vote in CNMI elections.

The fear that our local island population will be over-run by a "foreign" resident population is misdirected at the alien population. Our leaders have ensured this result by their decisions of the past, despite warnings, despite encouragements to have moratoriums on hiring foreign workers. It it too late to take back the CNMI from the natural consequences of the decisions CNMI Chamorro and Carolinian elected officials have made.

When I first arrived in the CNMI, we had a "permanent resident" law included in our CNMI code. It was repealed, on much the same thinking as now proposed in P.L. 15-108--the idea that the way to protect a cultural heritage is to deny others equal political status. This does not protect culture of any worthy kind. It only promotes evil.




One last bit before I close this long post:

"It is the intent of the Legislature that this Act shall not apply to persons
admitted to the Commonweatlh as tourists, or to persons employed illegally, i.e.
without the approval of the Department of Labor, or to those persons employing
others illegally in the Commonwealth unless specific provision has been made
herein."

The CNMI government is painfully aware that we have a human trafficking problem. Despite their repeated efforts to cover up current abuses and their insistence that the problem is a thing of the past, we keep seeing this. Especially in the sex industry--today's story is Club Jama. We've had the Red Heart Lounge, and the StarDust and Star Light nightclubs and others--all in the last two or three years.

When girls and women are trafficked into the CNMI they are almost always brought in as tourists, and then forced to dance naked or prostitute, kept locked in barracks or escorted everywhere they go.

Before P.L. 15-108, these girls and women could file labor complaints. And the Labor Department was fairly good at investigating. Now trafficking victims can't get this help. I think this is just another means the CNMI government is using to hide the reality of human trafficking in the CNMI. Workers, whether lawfully employed or tricked into unlawful employment, or foolish enough to agree to unlawful employment, are still laborers and deserve the protection of labor laws. It's not enough that the government may take up the case for the trafficking victims. They need easy access to a complaint mechanism that other workers have, too.



I'm not impressed by the purposes of P.L. 15-108. A law built on this foundation cannot be a good labor bill for the CNMI.

jmho.

160. P.L. 15-108. Our New "Labor" Law: What It Says; What It Means; and What I Think About It. PART 1.

P.L. 15-108 is 71 pages long. So I'm going to comment on bits and pieces of it, as I plow through it. These are my initial thoughts. I may revise them as I get to other sections of the law. I may re-think my positions and analysis as information or other comments come to light.

And because the bill is 71 pages long, I won't comment on everything. I haven't formed any strong feelings based on the coverage yet. I've been somewhat amused by all of the back-and-forth debate, wondering how much of it is just over-reaction and how much is warranted.


So here goes--my first foray into P.L. 15-108:

I got to the bottom of page 1 without screaming. Already I didn't like what I was reading. The law begins as most laws do with a statement of "findings" and "purposes." These are often instructive in how the language of the law should be interpreted, so I like to read these.

But this one starts with a purpose of achieving more employment for resident workers. That would be good. But I didn't like the "finding" written into the law that Chamorros and Carolinians should get even more preference than U.S. citizens and U.S. Permanent Residents for training and hiring. I think the notion that such preference is desireable goes against the fundamental freedoms of our U.S. and CNMI Constitutions that provide for equal protection.

And I didn't like the inference that locals should be groomed for management only jobs. I'm not fond of the prejudice against blue-collar work. It crops up again and again here. I don't think it makes economic sense. It runs directly counter to what economists (quoted in our local papers from sources like Wall Street Journal and other reputable business-oriented publications) are saying is the bedrock of an economy that can grow and thrive. And I find the prejudice against blue-collar work morally offensive.

So by the bottom of page 1, I'm not liking this bill much.

At page two, I found this:

The Covenant envisioned the employment of foreign nationals in the Commonwealth in order to create an economic base that would provide the citizens of the Commonwealth the economic opportunities and standard of living that their counterparts on the mainland are able to enjoy because of the vast area and large population from which communities on the mainland may draw employees.

What does this mean? It sounds to me like we get rich off the backs of cheap foreign labor. And we don't dirty our hands with the work ourselves. And that's our glorious vision for the CNMI.

And this purpose is "esteemed" because it's written into our Covenant. It's a bedrock principal!


I've read the Covenant. I've read the committee reports that constitute the legislative history of the Covenant. No where is there any such purpose stated.

The Covenant provided for local control over immigration in order to avoid problems with too many foreign nationals coming into a small community. The worry was not that we needed labor to sustain our industry; we could get that with U.S. controlled immigration. The worry was that the U.S. controlled immigration would not be responsive to our small, local issues and would allow foreign labor to overrun the island and change its character.

How do I know this? I wasn't here then, but as I've said, I read the reports. None of the reports--the House Committee Report (#94-364), the Senate Committee Reports (#94-433, 94-596), the Marianas Political Status Commission Memorandum, the Administration Memorandum, all assembed in a handy Section By Section Analysis prepared by Herman Marcuse of the Department of Justice--mention anything about providing cheap foreign labor so the locals could use them to raise their standard of living. The only comment about the reason for local control over immigration is this, from the Senate Committee Report, echoed in the Administration's Memorandum:

The Immigration and Naturalization Laws (subsection (a) [of Covenant sec. 503]. The reason this provision is included is to cope with the problems which unrestricted immigration may impose upon small island communities. Congress is aware of those problems. See, e.g., Alien Labor Program in Guam, Hearing before the Special Study Subcommittee of the Committee on the Judiciary, House of Representatives, 93d Cong., 1st Sess., pp. 19-25.

The vision of the CNMI's founding fathers was local control of immigration to limit the numbers of foreign workers. How badly did we screw up? Our government let in unlimited numbers of foreign workers, and we are overrun. And now our local population is a minority in its own place. That was exactly what the Covenant was supposed to protect against, but didnt work out.

So the "vision" now espoused in this latest law, because we can't admit that we made mistakes and didn't live up to the real vision, is one that our Legislators have concocted, not one that was built into our Covenant.

And it's an awful vision.

With this vision, I see the people of the CNMI standing on the backs and necks of the poor foreign workers. While the people of the CNMI enjoy middle class life, the foreign labor eats the dust on the floor.

That's what these words say to me. That's what is hidden in the text of the purposes. That we must have a social stratification, where locals are the owners and managers and foreigners are the peons.

And it's wrapped up in red, white, and blue--saying that this is what they have in the U.S. and we want it too!

And that's another distortion. In the mainland U.S., all people can enjoy the benefits of the large populaton and industry that can be built with it, but all people are entitled to be treated equally, too. The workers in those factories are U.S. citizens who organize into unions and bargain for better wages and benefits. The owners can't deport them when they complain.

The stated purpose of P.L. 15-108 is designed to keep foreign workers in subjugation to us.

Is there some other reading of this purpose? Is it just a neutral saying that we need foreign workers because we don't have enough local labor force to maintain industries?

I don't think so, because then it would say that we are employing foreign workers to help us create an economic base, where all people in the CNMI could enjoy a better standard of living.

The specific design of this purpose puts the workers on the economic base side and the locals on the enjoying a better life. There's no shared work and no shared benefit. That's by design.

As a purpose for a law that governs how we live, we should be striving for a higher, more ethical way of life. This island is filled with "Christians." Christ argued for a living wage, not exaltation of locals over foreigners. Not special preferences at the expense of others. Christ was a blue collar worker--a carpenter.

We have a long way to go, and a lot of wrong thinking to overcome. Our legislators and Governor should hang their heads in shame for allowing this purpose to be included in P.L. 15-108.





As a small side note: I'm sure someone will say why didn't I address these comments when the bill was being considered. The simple answer is, I can't unless I receive a specific written invitation directed to me (and not the general public or general bar association, etc.). I work for an organization that has regulations prohibiting comment to influence legislation, unless specifically solicited. (And even when I receive a request, I'm sometimes too busy to put my professional time into it. This blog, I do on my own time.) Once a law is passed, it becomes fair game and I'm free to comment.

As another small note: It shouldn't take a comment from me for our Legislators to see how offensive these findings and purposes are. Or to read the Covenant and the historical documents and see what was really said, what the true purpose was.