TITLE 80

DEPARTMENT OF LABOR

Chapter 80-10            Employment Services and Training Division

Subchapter 80-10.1    Resident Workers Fair Compensation Act Rules and Regulations [Reserved]

Chapter 80-20            Division of Labor

            Subchapter 80-20.1    Employment Rules and Regulations

            Subchapter 80-20.2    Alien Labor Rules of Practice and Procedure

Subchapter 80-20.3    Moratorium on Hiring Non-resident Workers Rules and Regulations

Subchapter 80-20.4    Security Guard, Manpower Companies and Service Providers Rules and Regulations

Subchapter 80-20.5    Limited Immunity for Illegal Aliens Rules and Regulations [Reserved]

Subchapter 80-20.6    Special Circumstance Temporary Work Authorizations Regulations

            Subchapter 80-20.7    Recruitment of Alien Workers Regulations

            Subchapter 80-20.8    Refugee Employment Regulations [Reserved]

            Subchapter 80-20.9    Alien Labor Rules and Regulations [Repealed]

Chapter 80-30            Garment Industry

Subchapter 80-30.1    Reallocation of Nonresident Workers in the Garment Industry Rules and Regulations

Subchapter 80-30.2    Transfer of Garment Manufacturing Business Licenses Regulations (Implementing Public Law 14-82)

Chapter 80-40            Ethics Code for Translators and Interpreters in Labor, Immigration and Refugee Protection Matters

 

CHAPTER 80-10

EMPLOYMENT SERVICES AND TRAINING DIVISION

 

SUBCHAPTER 80-10.1

RESIDENT WORKERS FAIR COMPENSATION ACT RULES AND REGULATIONS

 

Subchapter Authority: 4 CMC § 9504.

 

Subchapter History: Proposed 21 Com. Reg. 16644 (Apr. 19, 1999).*

 

*A notice of adoption for the proposed Resident Workers Fair Compensation Act Rules and Regulations was never published.

 

Commission Comment: PL 1-8, tit. 1, ch. 9 (effective Aug. 10, 1978), codified as amended at 1 CMC §§ 2451-2472, originally created a Department of Commerce and Labor (DOCL) within the Commonwealth government. See 1 CMC § 2451. 1 CMC § 2454 directs the Department to adopt rules and regulations regarding those matters over which the Department had jurisdiction.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 103 and 301:

 

Section 103. Department of Commerce.

 

The Department of Commerce and Labor is redesignated the Department of Commerce.

 

 

Section 301. Department of Labor and Immigration.

               (a)          Department Established. The is hereby established a Department of Labor and Immigration which shall have at its head a Secretary of Labor and Immigration.

               (b)          Labor and Employment Services.

                              (1)          The Division of Labor and the Division of Employment Services are transferred from the Department of Commerce to the Department of Labor and Immigration. The Secretary of Labor and Immigration shall strengthen the Division of Employment Services to increase its ability to encourage and locate private sector employment for Commonwealth residents. The Secretary shall coordinate the functions of the two offices such that the availability of resident workers known to the Division of Employment Services is considered by the Division of Labor before non-resident worker certificates are issued.

                              (2)          The function of the Secretary of Commerce under Chapter 2 [of] 4 CMC, Division 9 [4 CMC §§ 9211, et seq.], relating to minimum wages and hours, are transferred to the Secretary of Labor and Immigration.

                              (3)          The Wage and Salary Review Board is abolished and its records, property, facilities, equipment, and supplies transferred to the Department of Labor and Immigration.

                              (4)          The State Job Training Coordination Council/Private Industry Council and the JTPA office are allocated to the Department of Labor and Immigration for purposes of administration and coordination.

                              (5)          Pursuant to paragraph (2) of 3 CMC § 4424(a), the Secretary of Labor and Immigration shall by regulation increase to not less than $200 the annual fee for the processing of the initial application and for each annual renewal of a non-resident worker certificate, provided that the additional funds collected as a result of such increase shall be covered into the General Fund. On October 1, 1994, any funds remaining in the Commonwealth Non-resident Worker Fee Fund or in any account established pursuant to paragraph (1) of such subsection, shall be covered into the General Fund, may be reprogrammed by the Governor, and shall remain available for obligation until expended. The Governor may transit to the Legislature revised budget estimates for Fiscal Year 1995 as necessary to conform to the provisions of this paragraph.

               (c)          Immigration.

                              (1)          The Office of Immigration and Naturalization is re-designated the Immigration Service and is transferred to the Department of Labor and Immigration as a division of that department. The Immigration Service shall have at its head a Director of Immigration, who shall have all the powers assigned by law to the Immigration and Naturalization Officer, except any power transferred pursuant to Section 201 of this plan. The position of Immigration and Naturalization Officer is abolished.

                              (2)          All functions of the Attorney General relating to immigration and naturalization, are transferred to the Secretary of Labor and Immigration except:

                                             (A)         any function transferred pursuant to Section 201 of this plan,

                                             (B)         the hearing of immigration appeals as provided in 3 CMC § 4336(d), and

                                             (C)         the constitutional function of legal representation.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

PL 9-71 (effective Nov. 16, 1995), the “Resident Workers Fair Compensation Act of 1995,” codified as amended at 4 CMC §§ 9501-9504, provides that all benefits mandated by law for nonresident workers must also be given to resident workers as provided in the act. 4 CMC § 9504 directs the Secretary of Labor and Immigration to promulgate regulations to implement the act within 30 days of November 16, 1995.

 

On August 16, 1995, the Secretary of DOLI published several memoranda delegating authority to enforce certain provisions of the Nonresident Workers Act and the Minimum Wage and Hour Act to the Director of Employment Services. See 17 Com. Reg. 13670-73 (Aug. 16, 1995).

 

Executive Order 03-01 (effective May 9, 2003), the “Department of Labor and Immigration Reorganization Plan of 2003,” returned the immigration functions of the executive branch to the Office of the Attorney General and renamed the Department of Labor. According to Executive Order 03-01 § 101:

 

Section 101. Office of the Attorney General: Division of Immigration. The Division of Immigration, Department of Labor and Immigration is transferred to the Office of the Attorney General to be headed by a Director of Immigration who shall be appointed and serve at the pleasure of the Attorney General. The position shall be exempted from the civil service system pursuant to PL 13-1.

 

 

               (d)          The Department of Labor and Immigration shall be renamed the Department of Labor to be headed by a Secretary who shall be appointed by, and serve at the pleasure of, the Governor with advice and consent of the Senate. The Department of Labor shall consist of the Division of Labor, Division of Employment Services and Training, and Administrative Hearing Office. Each division shall be headed by a Director who shall be appointed by, and serve at the pleasure of, the Secretary. The Administrative Hearing Office shall be headed by a Hearing Office Administrator, who shall be appointed by, and serve at the pleasure of, the Secretary. These three position shall be exempt for the civil service system pursuant to PL 13-1.

 

Section 702 of the Consolidated Natural Resources Act of 2008 (PL 110-229, codified at 48 U.S.C. § 1806) removed the CNMI’s authority to create and manage its own immigration laws. On March 22, 2010, the Governor signed PL 17-1, removing all references to immigration and deportation functions from the Commonwealth Code.

 

[Reserved for future regulations pursuant to 4 CMC § 9504.]

 


 

 

SUBCHAPTER 80-20.1

EMPLOYMENT RULES AND REGULATIONS

 


Part 001          Department of Labor

Subpart A        Authority, Purpose, and Name

§ 80-20.1-001             Authority

§ 80-20.1-005             Purpose

§ 80-20.1-010             Name

Subpart B        Organization

§ 80-20.1-015             Department Leaders and Sections

§ 80-20.1-020             Citizen Job Availability Manager

§ 80-20.1-025             Citizen Job Placement Manager

§ 80-20.1-030             Guest Worker Manager

§ 80-20.1-035             Enforcement Manager

§ 80-20.1-040             Administrative Hearing Office Manager

§ 80-20.1-045             Data Services Manager

§ 80-20.1-050             Administration Manager

§ 80-20.1-055             Federal Relations Liaison Officer

§ 80-20.1-060             Employer Relations Liaison Officer

Subpart C        General

§ 80-20.1-065             Delegation of Authority

§ 80-20.1-070             Appearance of Conflict

§ 80-20.1-075             Preparation and Use of Standard Forms

§ 80-20.1-080             Definitions

 

Part 100          Commonwealth Employment Policies

Subpart A        Job Preference for Citizens

§ 80-20.1-101             Preference Requirement

§ 80-20.1-105             Workforce Participation Objective

Subpart B        Secondary Preference for FAS Citizens

§ 80-20.1-110             Secondary Preference for FAS Citizens

Subpart C        Workforce Support from Foreign National Workers and Transitional Workers

§ 80-20.1-115             Workforce Support from Foreign National Workers and Transitional Workers

Subpart D        Collection of Administrative Awards

§ 80-20.1-120             Collection of Administrative Awards

 

Part 200          Workforce Participation by Citizens, CNMI Permanent Residents, and U.S. Permanent Residents

Subpart A        General

§ 80-20.1-201             Appropriate Classification of Employers

§ 80-20.1-205             Fair Qualification for Employment

Subpart B        Private Sector Workforce Participation

§ 80-20.1-210             Participation Objective

§ 80-20.1-215             Exemptions from Workforce Participation

Subpart C        Private Sector Employment Preference

§ 80-20.1-220             Job Preference Requirement

§ 80-20.1-225             Job Vacancy Announcement

§ 80-20.1-230             Employer Registration

§ 80-20.1-235             Job Referral

§ 80-20.1-240             Reductions in Force

Subpart D        Private Sector Compliance with Resident Worker Fair Compensation Act

§ 80-20.1-245             The Resident Worker Fair Compensation Act

§ 80-20.1-250             Classification of Workers

§ 80-20.1-255             Benefits

§ 80-20.1-260             Payment of Benefits by Employers

 

Part 300          Workforce Participation by Aliens

Subpart A        FAS Citizens

§ 80-20.1-301             Status

§ 80-20.1-305             Secondary Preference

§ 80-20.1-310             Job Preference

Subpart B        Umbrella Permit Holders

§ 80-20.1-315             General

§ 80-20.1-320             Requirements for Permit Holders, General

§ 80-20.1-325             Requirements for Permit Holders, Employment-Qualified

§ 80-20.1-330             Requirements for Employers, Full-time Employment of Permit Holders

§ 80-20.1-335             Requirements for Employers, Other than Full-Time Employment of Permit Holders

Subpart C        Transitional Workers

§ 80-20.1-340             General

§ 80-20.1-345             Requirements for Employers of Transitional Workers

 

Part 400          Labor Investigations and Dispute Resolution

Subpart A        Safe Workplace Conditions

§ 80-20.1-401             Safe Workplace Conditions

§ 80-20.1-405             Safety Devices and Safeguards

§ 80-20.1-410             Drinking Water

§ 80-20.1-415             Occupational Safety and Health Regulations

§ 80-20.1-420             Employee Housing

Subpart B        Lawful Employment Practices

§ 80-20.1-425             Lawful Employment Practices

Subpart C        Inspections and Investigations

§ 80-20.1-430             Procedure for Inspections and Investigations

§ 80-20.1-435             Violations

§ 80-20.1-440             Inspections Pursuant to Warrant

§ 80-20.1-445             Investigation

Subpart D        Adjudication of Disputes

§ 80-20.1-450             Jurisdiction of the Administrative Hearing Office

§ 80-20.1-455             Complaints and Actions in Labor Matters

§ 80-20.1-460             General Procedures

§ 80-20.1-465             Mediation of Complaints

§ 80-20.1-470             Powers of the Hearing Officer

§ 80-20.1-475             Service of Process

§ 80-20.1-480             Conduct of Hearings

§ 80-20.1-485             Orders and Enforcement

§ 80-20.1-490             Appeals

 

Part 500          Records, Reports, and Registration

Subpart A        Records

§ 80-20.1-501             Required Records

Subpart B        Reporting

§ 80-20.1-505             Census of Employment

§ 80-20.1-510             Workforce Plan

Subpart C        Registration of Aliens

§ 80-20.1-515             General

§ 80-20.1-520             Federal Registration

§ 80-20.1-525             Commonwealth Registration

§ 80-20.1-530             No Duplicate Registration

 

Part 600          Other Provisions

Subpart A        Regulations

§ 80-20.1-601             Regulations

Subpart B        Limitations

§ 80-20.1-605             Computation of Time Periods

§ 80-20.1-610             Time Limit for Filing Complaints

§ 80-20.1-615             Motions for Reconsideration

§ 80-20.1-620             Time for Filing Appeals

Subpart C        Electronic Filing and Access

§ 80-20.1-625             Electronic Forms

§ 80-20.1-630             Online Access

Subpart D        Fees

§ 80-20.1-635             Fees

Subpart E        Severability and Effective Date

§ 80-20.1-640             Severability

§ 80-20.1-645             Effective Date

 

 

Appendix A    Former Immigration Categories

 

Appendix B     Umbrella Permit Conditions

 

Appendix C    Report-Back Dates for Umbrella Permits


 

Subchapter Authority: Public Laws 15-108 and 17-1; 1 CMC § 2454; 3 CMC § 4424(a)(1) and 4530; Executive Order 94-3 § 301.

 

Subchapter History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Amdts Adopted 30 Com. Reg. 28622 (Aug. 25, 2008); Amdts Emergency and Proposed 30 Com. Reg. 28477 (May 27, 2008)(effective for 120 days from May 12, 2008); Amdts Adopted 30 Com. Reg. 28620 (Aug. 25, 2008); Amdts Emergency and Proposed 30 Com. Reg. 28326 (Mar. 25, 2008)(effective for 120 days from March 17, 2008); Amdts Emergency and Proposed 30 Com. Reg. 27956 (Jan. 22, 2008)(effective for 120 days from December 19, 2007);* Amdts Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Amdts Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Amdts Proposed 29 Com. Reg. 27213 (Nov. 19, 2007); Amdts Proposed 29 Com. Reg. 26785 (Sept. 17, 2007);* Amdts Emergency and Proposed 29 Com. Reg. 26529 (June 18, 2007) (effective for 120 days from June 4, 2007);* Amdts Adopted 28 Com. Reg. 26332 (Nov. 30, 2006); Amdts Emergency and Proposed 28 Com. Reg. 26020 (Aug. 24, 2006) (effective Aug. 4, 2006); Amdts Emergency and Proposed 28 Com. Reg. 25922 (July 21, 2006) (effective for 120 days from June 27, 2006); Amdts Adopted 27 Com. Reg. 25151 (Oct. 24, 2005); Amdts Adopted 27 Com. Reg. 24087 (Feb. 17, 2005); Amdts Emergency and Proposed 27 Com. Reg. 23780 (Jan. 17, 2005) (effective for 120 days from January 14, 2005); Amdts Emergency and Proposed 26 Com. Reg. 22967 (Oct. 26, 2004) (effective for 120 days from Oct. 20, 2004);** Amdts Adopted 26 Com. Reg. 22866 (July 26, 2004); Amdts Proposed 26 Com. Reg. 22676 (June 24, 2004); Amdts Proposed 26 Com. Reg. 22364 (Apr. 23, 2004); Amdts Proposed 26 Com. Reg. 22149 (Mar. 23, 2004); Amdts Emergency and Proposed 25 Com. Reg. 21460 (Nov. 17, 2003) (effective for 120 days from Nov. 7, 2003);* Amdts Emergency and Proposed 20 Com. Reg. 16153 (Oct. 15, 1998) (effective for 120 days from October 13, 1998);* Amdts Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Amdts Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998) (effective for 120 days from June 16, 1998); Amdts Adopted 18 Com. Reg. 14210 (July 15, 1996) (adopting in part the December 1995 and October 1994 proposed regulations); Amdts Emergency 18 Com. Reg. 14176 (July 15, 1996) (effective June 28, 1996); Amdts Proposed 17 Com. Reg. 13874 (Dec. 15, 1995); Amdts Emergency and Proposed 16 Com. Reg. 12451 (Oct. 15, 1994) (effective for 120 days from Sept. 20, 1994); Amdts Emergency and Proposed 17 Com. Reg. 12727 (Jan. 15, 1995) (effective for 120 days from Jan. 13, 1995);* Amdts Emergency and Proposed 16 Com. Reg. 12671 (Dec. 15, 1994) (effective for 120 days from Nov. 17, 1994);* Amdts Adopted 16 Com. Reg. 12483 (Oct. 15, 1994); Amdts Emergency and Proposed 16 Com. Reg. 12371 (Sept. 15, 1994) (effective for 120 days from Sept. 7, 1994); Amdts Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Amdts Proposed 16 Com. Reg. 12397 (Sept. 15, 1994); Amdts Adopted 16 Com. Reg. 12431 (Sept. 15, 1994); Amdts Proposed 16 Com. Reg. 12044 (June 15, 1994); Amdts Adopted 16 Com. Reg. 12315 (Aug. 15, 1994); Amdts Emergency and Proposed 16 Com. Reg. 12091 (June 15, 1994) (effective for 120 days from May 23, 1994); Amdts Adopted 16 Com. Reg. 12311 (Aug. 15, 1994); Amdts Proposed 16 Com. Reg. 12050 (June 15, 1994); Amdts Adopted 16 Com. Reg. 12307 (Aug. 15, 1994); Amdts Proposed 16 Com. Reg. 12047 (June 15, 1994); Amdts Proposed 15 Com. Reg. 10387 (Jan. 15, 1993);* Amdts Emergency and Proposed 14 Com. Reg. 8743 (Feb. 15, 1992) (effective for 120 days from Jan. 12, 1992);* Certified 14 Com. Reg. 9176 (Apr. 15, 1992); Amdts Adopted 12 Com. Reg. 7135 (June 15, 1990); Amdts Emergency and Proposed 12 Com. Reg. 7013 (May 15, 1990) (effective for 120 days from May 11, 1990); Certified 14 Com. Reg. 9176 (Apr. 15, 1992); Adopted 10 Com. Reg. 5510 (Apr. 15, 1988); Proposed 10 Com. Reg. 5438 (Feb. 15, 1988); Proposed 8 Com. Reg. 4480 (Aug. 15, 1986).

 

* Notices of adoption for the proposed amendments were not published.

 

Commission Comment: PL 1-8, tit. 1, ch. 9 (effective Aug. 10, 1978), codified as amended at 1 CMC §§ 2451-2472, originally created a Department of Commerce and Labor (DOCL) within the Commonwealth government. See 1 CMC § 2451. 1 CMC § 2454 directed the Department to adopt rules and regulations regarding those matters over which the Department had jurisdiction. PL 1-8, tit. 1, ch. 9, §§ 4 and 5 created a Division of Labor within the Department of Commerce and Labor, responsible for the day-to-day supervision and administration of matters involving labor. See 1 CMC §§ 2471 and 2472.

 

PL 3-66 (effective Aug. 18, 1983), the “Nonresident Workers Act,” codified as amended at 3 CMC §§ 4411-4452, was enacted to control the employment of nonresident workers and to create a preference for the employment of resident workers in the Commonwealth. See 3 CMC §§ 4411 and 4413. 3 CMC § 4421 authorized the Department of Commerce and Labor, Division of Labor to implement and enforce the provisions of the act. 3 CMC § 4424(a) directed the Director of DOCL to promulgate rules and regulations to implement the intent of the act.

 

Executive Order 94-3 (effective August 23, 1994) reorganized the Commonwealth government executive branch, changed agency names and official titles and effected numerous other revisions. According to Executive Order 94-3 §§ 103 and 301:

 

Section 103. Department of Commerce.

 

The Department of Commerce and Labor is re-designated the Department of Commerce.

 

 

Section 301. Department of Labor and Immigration.

               (a)          Department Established. The is hereby established a Department of Labor and Immigration which shall have at its head a Secretary of Labor and Immigration.

               (b)          Labor and Employment Services.

                              (1)          The Division of Labor and the Division of Employment Services are transferred from the Department of Commerce to the Department of Labor and Immigration. The Secretary of Labor and Immigration shall strengthen the Division of Employment Services to increase its ability to encourage and locate private sector employment for Commonwealth residents. The Secretary shall coordinate the functions of the two offices such that the availability of resident workers known to the Division of Employment Services is considered by the Division of Labor before non-resident worker certificates are issued.

 

The full text of Executive Order 94-3 is set forth in the commission comment to 1 CMC § 2001.

 

Executive Order 03-01 (effective May 9, 2003), the “Department of Labor and Immigration Reorganization Plan of 2003,” returned the immigration functions of the executive branch to the Office of the Attorney General and renamed the Department of Labor. According to Executive Order 03-01 § 101:

 

Section 101. Office of the Attorney General: Division of Immigration. The Division of Immigration, Department of Labor and Immigration is transferred to the Office of the Attorney General to be headed by a Director of Immigration who shall be appointed and serve at the pleasure of the Attorney General. The position shall be exempted from the civil service system pursuant to PL 13-1.

 

 

               (d)          The Department of Labor and Immigration shall be renamed the Department of Labor to be headed by a Secretary who shall be appointed by, and serve at the pleasure of, the Governor with advice and consent of the Senate. The Department of Labor shall consist of the Division of Labor, Division of Employment Services and Training, and Administrative Hearing Office. Each division shall be headed by a Director who shall be appointed by, and serve at the pleasure of, the Secretary. The Administrative Hearing Office shall be headed by a Hearing Office Administrator, who shall be appointed by, and serve at the pleasure of, the Secretary. These three position shall be exempt for the civil service system pursuant to PL 13-1.

 

In 1979, pursuant to the authority of PL 1-8, the Department of Commerce and Labor first issued “Fees for Alien Worker Permit Rules.” See 1 Com. Reg. 430 (Aug. 16, 1979); 1 Com. Reg. 376 (July 16, 1979). DOCL also proposed “Pre-certification of Critical Shortage Occupations Rules.” See 1 Com. Reg. 424 (Aug. 16, 1979); 1 Com. Reg. 379 (July 16, 1979) (inviting the public to submit nominations of occupations to be included on the initial pre-certification list). A notice of adoption for the proposed pre-certification rules was never published.

 

In 1980, DOCL published a public notice lifting the moratorium on the transfer of nonresident workers imposed on May 1, 1980. See 2 Com. Reg. 888 (Aug. 26, 1980).

 

In 1981, DOCL issued and administered the 1981 “Protection of Resident Workers and Employment of Non-resident Workers Regulations” and the 1981 “Rules Concerning Procedures for Compliance, Monitoring, Complaints and Grievances, Investigation, Hearings and Enforcement,” pursuant to the authority of PL 1-8. The history of the 1981 rules and regulations is as follows: Amdts Adopted 5 Com. Reg. 2163 (May 27, 1983); Amdts Emergency and Proposed 5 Com. Reg. 1772 (Jan. 31, 1983) (effective for 120 days from Jan. 27, 1983); Adopted 3 Com. Reg. 1315 (July 31, 1981); Proposed 3 Com. Reg. 975 (Feb. 23, 1981); Adopted 3 Com. Reg. 1308 (July 31, 1981); Proposed 3 Com. Reg. 989 (Feb. 23, 1981).

 

The Department of Commerce and Labor first issued the 1988 Alien Labor Rules and Regulations codified in this subchapter. After Executive Order 94-3 created the Department of Labor and Immigration, beginning with the December 1994 proposed amendments, the new Department continued to amend the existing 1988 Alien Labor Rules and Regulations. In 2003, the newly created Department of Labor began to promulgate amendments to this subchapter.

 

Attorney General Opinion 07-02 found that “a nonresident worker, as defined in 3 CMC § 4412(i), who did not have a ‘financial interest in or operated or engaged in any business or become an employer’ before July 28, 1987, may not be either a member for the board of directors nor an officer of a corporation.” 29 Com. Reg. 26679 (July 18, 2007). Attorney General Opinion 07-02 emphasized that mere presence in the Commonwealth before July 28, 1987 does not make a nonresident worker eligible to have an interest in or operate a business or become an employer.

 

Public Law 15-108 (codified at 3 CMC §§ 4401-4973), effective January 1, 2008, the Commonwealth Employment Act of 2007, repealed and re-enacted the Non-Resident Workers Act (PL 3-66 as amended) and substantially amended statutory provisions regarding the employment of resident and non-resident workers. PL 15-108, among other things, provides employment preferences for citizens and permanent residents; a moratorium on the hiring of foreign national workers; requirements for the entry/exit and employment of foreign nationals; Department of Labor responsibilities; a complaint/dispute resolution and adjudication process; and the authority for the Department of Labor to promulgate regulations.

 

In January 2008, the Department of Labor adopted regulations entitled, Employment Rules and Regulations, to comply with PL 15-108. The Employment Rules and Regulations repealed and replaced the Alien Labor Rules and Regulations in their entirety. The former Alien Labor Rules and Regulations were moved to subchapter 80-20.9 for historical purposes.

 

The Employment Rules and Regulations were first adopted in January 2008 and then renumbered and re-promulgated with amendments in October 2008. The Employment Rules and Regulations, as amended, are set forth in this subchapter.

 

Title VII of US Public Law 110-229, the Consolidated Natural Resources Act of 2008 (CRNA), enacted on May 8, 2008, extended the Immigration and Nationality Act (INA) and other provisions of United States immigration law to the Commonwealth of the Northern Mariana Islands. The CNRA provides for a transition period before full application of the INA to the Commonwealth, which had been responsible for its own immigration policies prior to the CNRA. The transition period started November 28, 2009 and is scheduled to end on December 31, 2014. Beginning November 28, 2009, the Commonwealth no longer retained jurisdiction over immigration matters in the Commonwealth of the Northern Mariana Islands.

 

On March 22, 2010, CNMI Public Law 17-1, the Immigration Conformity Act, became law. Section 12 of the Act stated that the Act shall be retroactive to November 28, 2009 except as otherwise provided by law. The Act repealed immigration responsibilities of the Commonwealth found in the Commonwealth statutory code and amended certain provisions of the code addressing labor in the Commonwealth.

 

In May 2010, the Department of Labor promulgated the Employment Rules and Regulations set forth in this subchapter, as amended, to supersede the previous rules and regulations. Previous history of the regulations are noted following each section and in Commission comments, where appropriate.            

 

Between September, 2007, and January, 2008, the DOL proposed and made emergency amendments to several sections in the former chapter 80-20.1. For § 80-20.1-105(a)(1), see 29 Com. Reg. 26785 (Sept. 2007) (Proposed Amendment). For § 80-20.1-105(a)(8), see 29 Com. Reg. 26785 (Sept. 2007) (Proposed Amendment). For § 80-20.1-105(c)(1), see 29 Com. Reg. 26785 (Sept. 2007) (Proposed Amendment). For § 80-20.1-105(c)(7), see 29 Com. Reg. 26785 (Sept. 2007) (Proposed Amendment). For § 80-20.1-110(d)(3), see 30 Com. Reg. 27956 (Jan. 2008) (Emergency Proposed Amendment). For § 80-20.1-135(f), see 30 CR 27956 (Jan. 2008) (Emergency Proposed Amendment). For § 80-20.1-305(d), see 29 Com. Reg. 26785 (Sept. 2007) (Proposed Amendment). For§ 80-20.1-1201(a), see 30 Com. Reg. 27956 (Jan. 2008) (Emergency Proposed Amendment).

 

Public Law 17-59, effective November 4, 2011, amended PL-15-108 (amending 3 CMC ' 4972), giving an exemption to engineers and enabling the Department of Public Works to hire foreign national engineers up to 2015.

 

Part 001 -       Department of Labor

 

Subpart A -     Authority, Purpose and Name

 

§ 80-20.1-001             Authority

 

The Department of Labor (the “Department), pursuant to its powers, duties, and authority under the Immigration Conformity Act of 20 10, PL 17-1 ; the Commonwealth Employment Act of 2007, PL 15-108; the Minimum Wage and Hour Act, as amended; and Public Laws No, 11-6, 12-1 1, and 12-58 as amended, does hereby promulgate and issue these regulations that shall govern the employment of citizens, permanent residents, foreign national workers, and other nonimmigrant aliens in the Commonwealth.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007); Amdts Adopted 26 Com. Reg. 22866 (July 26, 2004); Amdts Proposed 26 Com. Reg. 22676 (June 24, 2004); Amdts Proposed 26 Com. Reg. 22364 (Apr. 23, 2004); Amdts Proposed 26 Com. Reg. 22149 (Mar. 23, 2004); Certified 14 Com. Reg. 9176 (Apr. 15, 1992); Adopted 10 Com. Reg. 5510 (Apr. 15, 1988); Proposed 10 Com. Reg. 5438 (Feb. 15, 1988); Proposed 8 Com. Reg. 4480 (Aug. 15, 1986).

 

Commission Comment: The 2010 amendments changed the title of part 001 and added PL 17-1. The Commission created the title of subpart A.

 

§ 80-20.1-005                         Purpose

 

The purpose of these regulations is to set forth the necessary organization, procedures and requirements to implement Public Law 15-108 as amended by Public Law 17-1, hereinafter “the Commonwealth Employment Act of 2007, as amended.”

 

Modified, 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010);Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007); Amdts Adopted 26 Com. Reg. 22866 (July 26, 2004); Amdts Proposed 26 Com. Reg. 22676 (June 24, 2004); Amdts Proposed 26 Com. Reg. 22364 (Apr. 23, 2004); Amdts Proposed 26 Com. Reg. 22149 (Mar. 23, 2004); Certified 14 Com. Reg. 9176 (Apr. 15, 1992); Adopted 10 Com. Reg. 5510 (Apr. 15, 1988); Proposed 10 Com. Reg. 5438 (Feb. 15, 1988); Proposed 8 Com. Reg. 4480 (Aug. 15, 1986).

 

Commission Comment: The 2010 amendments substantially changed this section.

 

§ 80-20.1-010             Name

 

These regulations shall be known as the “Employment Rules and Regulations.”

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010);Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).        

 

Commission Comment: The 2010 amendments re-promulgated this section without change.

 

Subpart B -     Organization

 

§ 80-20.1-015             Department Leaders and Sections

 

The Department shall be organized with a Secretary, Deputy Secretary, and managers of seven sections: the Citizen Job Availability Section, Citizen Job Placement Section, the Guest Worker Section, the Enforcement Section, the Administrative Hearing Office, the Data Services Section, and the Administration Section. In addition, the Department shall have two coordinators: Federal Relations, and Employer Relations.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-020             Citizen Job Availability Manager

 

The Manager of the Citizen Job Availability Section shall manage the forecasts as to job availability over rolling 12-month periods, monitoring of databases with respect to jobs that will become available for citizen placement, maintaining and analyzing reports from employers and employees on jobs currently active in the economy, monitoring compliance with NAICS and O-NET classification requirements, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-025             Citizen Job Placement Manager

 

The Manager of the Citizen Job Placement Section shall operate the JVA system, manage the work with individual citizens, CNMI permanent residents, and U.S. permanent residents to match persons seeking jobs to jobs that are or will become available, and to find and coordinate resources from other agencies for job readiness including any necessary training, internship, practice, or other prerequisites to placing citizens in jobs. This manager will also manage the follow-up after citizens are placed in jobs to ensure against hostile workplaces, help secure adequate opportunities to advance, monitor effective dispute resolution, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-030             Guest Worker Manager

 

The Manager of the Guest Worker Section shall manage all aspects of the regulatory requirements with respect to employment in the private sector of foreign workers and other nonimmigrant aliens, the registration of aliens, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-035             Enforcement Manager

 

The Chief of the Enforcement Section shall manage enforcement of requirements both with respect to the employment of citizens, CNMI permanent residents, and U.S. permanent residents, and with respect to employment of nonimmigrant aliens in the Commonwealth. This manager will also manage enforcement of minimum wage and other labor laws, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-040             Administrative Hearing Office Manager

 

The Manager of the Administrative Hearing Office shall manage the intake of complaints and appeals in job preference cases, labor cases, denial cases, agency cases, and umbrella permit cases, the hearing dockets for all types of cases, maintain the barred list, maintain audio and digital files of transcripts and administrative orders, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-045             Data Services Manager

 

The Manager of the Data Services Section shall manage the Department’s information technology services including the automation system, the interactive website, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-050             Administration Manager

 

The Manager of the Administration Section shall manage the Department’s payroll, contracts, standard forms for various administrative functions, standard operating procedures, and other administrative matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-055             Federal Relations Liaison Officer

 

The Federal Relations Liaison Officer is in charge of the Department’s liaison with all federal government agencies. The Manager provides a central point of contact with federal officials and agencies, and will search out grant opportunities for the Department to augment its CNMI budgeted funds, coordinate the preparation and presentation of grant applications, and other matters as assigned by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-060             Employer Relations Liaison Officer

 

The Employer Relations Liaison Officer is in charge of the Department’s liaison with all employers in the Commonwealth as to their employment of U.S. citizens, CNMI permanent residents, U.S. permanent residents, FAS citizens, foreign national workers, transitional workers, and immediate relatives qualified to work. The Manager of Employer Relations will be responsible for the Department’s employment census under the new legislative requirements.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

Subpart C -     General

 

§ 80-20.1-065             Delegation of Authority

 

(a)       The Secretary of Labor hereby delegates authority under the Commonwealth Employment Act of 2007, as amended; the Minimum Wage and Hour Act as amended; and Public Laws No. 11 -6, 12-11, and 12-58 to the Deputy Secretary, the managers in the Department appointed by the Secretary, the liaison officers, and the hearing officers in the Administrative Hearing Office.

 

(b)       Written delegations of authority shall remain in full force and effect until rescinded, altered, or modified as circumstances require.

 

(c)       An automatic delegation of the Secretary’s authority to the Deputy Secretary shall occur whenever the Secretary is off-island.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from § 80-20.1-101 and amended subsection (c). The Commission created the title of subpart C and inserted a comma after “Deputy Secretary” in subsection (a) to correct a manifest error.

 

§ 80-20.1-070             Appearance of Conflict

 

(a)       Employees of the Department shall avoid the appearance of conflicts of interest by reporting to the Secretary any contractual interest in an employment agency or other business engaged in recruiting or processing employment-related documents when the contractual interest is held by or for the benefit of the employee or a member of the immediate family of the employee.

 

(b)       For purposes of this section, the term “employee” means any person whose salary is paid by or through the Department and any contractor with the Department and the term “immediate family” means parent, spouse, sibling, or child.

 

(c)       Employees of the Department shall advise the Secretary if any person with a close familial or personal relationship appears before the employee at the Department or requests the employee to act in regard to the exercise of any power of the Department under this Act and shall perform no such act unless permitted in writing by the Secretary.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from § 80-20.1-105 without changing the content.

 

§ 80-20.1-075             Preparation and Use of Standard Forms

 

It is the policy of the Department to use standard forms where possible to simplify administrative tasks, to permit the use of online filing, and to make operations more efficient. The Secretary or a designee may, at any time, amend, modify, alter, or substitute any of these forms, or add new forms as may be necessary for efficient operation of the Department, all without any amendment of this subchapter. The Department may require that information on the standard forms be supplemented as provided in this subchapter. Providing a standard form in no way limits the Secretary as to information that may be required in support of an application, request, or submission to the Department.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments re-promulgated this section without change.

 

§ 80-20.1-080             Definitions

 

The following terms shall, unless the context clearly indicates otherwise, have the following meanings:

 

(a)       “Administrative Hearing Office” means the hearing office of the Department of Labor; and for purposes of 1 CMC §§ 9109 and 9110 as those provisions may apply to this subchapter;

 

(b)       “Approved employment contract” means a written contract between a foreign national worker and an employer, which has been approved by the Secretary, specifying the terms and conditions for work to be performed by the foreign national worker within the Commonwealth;

 

(c)       “Approved security contract” means a written contract executed by an employer providing security for defined employer obligations with respect to the employment of foreign national workers in a form that has been approved or accepted by the Secretary;

 

(d)       “Citizen” means a person who is a citizen or national of the United States;

 

(e)       “CNMI permanent resident” means a person who was granted the status of CNMI permanent resident by the CNMI government prior to April 23, 1981;

 

(f)        “Debarment” means, pursuant to an administrative order, the temporary or permanent prohibition on employment by an employer of foreign national workers and other nonimmigrant aliens;

 

(g)       “Department” means the Department of Labor;

 

(h)       “Domestic helper” means a person who assists an employer with the domestic duties of a household, including but not limited to cooking, and cleaning, and care for children, elders, and handicapped persons in the home; and does not include farmers;

 

(i)        “Employer” means a person, corporation, partnership, or other legal entity that has a current business license issued by the Commonwealth, is doing business in the Commonwealth, and has one or more approved employment contracts with foreign national workers, or is acting directly or indirectly in the interest of a person, corporation, partnership or other legal entity in relation to an employee; or a person employing a domestic helper or farmer; and does not include the government of the United States;    

 

(j)        “FAS citizen” means a citizen of the Freely Associated States, which are the Federated States of Micronesia, The Republic of the Marshall Islands, and the Republic of Palau, who is legally residing in the Commonwealth;

 

(k)       “Foreign national worker” means a person who is not a United States citizen, a United States permanent resident, a CNMI permanent resident, or an immediate relative of a United States citizen or a United States permanent resident, or an immediate relative of a CNMI permanent resident, and who entered the CNMI as a nonimmigrant prior to November 28, 2010 for the declared purpose of being employed in the Commonwealth;

 

(l)        “Hearing officer” means a hearing officer appointed by the Secretary who serves in the Administrative Hearing Office and who conducts mediations, hearings, and other proceedings as necessary; and for purposes of 1 CMC §§ 9109 and 9110 as those provisions may apply to this subchapter;

 

(m)      “Identification card” means an identification card issued by the Department using the Labor Information Data System (LIDS) or comparable system to assign a unique identification number to a particular person;

 

(n)       “Immediate relative” means a spouse by marriage, or equivalent status in a family relationship, or a natural, adopted, or step child under the age of twenty-one years, if adopted before the child reached the age of eighteen years, or if the marriage that created the stepchild relationship took place before the child reached the age of eighteen years. A disabled child of any age qualifies as an immediate relative if in the continuous custody and care of the parent;

 

(o)       “Mediation” means an informal, non-public, confidential meeting attended by the parties to a labor dispute or potential labor dispute together with a mediator designated by the Administrative Hearing Office in order to seek a voluntary resolution of the dispute satisfactory to all parties and reflected in a written agreement;

 

(p)       “Nonimmigrant alien” means a person described in Section 101 (a)(15) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15);

 

(q)       “Private sector” means economic activity carried on by business or non-business employers who are not governmental entities or entities owned or controlled by any government;

 

(r)        “Repatriation” means the exit from the Commonwealth and travel to the point of hire for a foreign national worker or transitional worker, or immediate relative of a foreign national worker or transitional worker, by voluntary action; and in the case of death while in the Commonwealth, the embalming and shipment of the body to the point of hire;

 

(s)        “Secretary” means the Secretary of Labor;

 

(t)        “Status-qualified” refers to a participant in the workforce who is a citizen, CNMI permanent resident, or U.S. permanent resident or an immediate relative of a citizen, CNMI permanent resident, or U.S. permanent resident;

 

(u)       “Termination” means, with respect to an approved employment contract, the expiration of the contract according to its terms, termination by a party for cause or as otherwise permitted during the term of the contract, or termination by the Secretary for cause during the term of the contract;

 

(v)       “Transfer” means a process by which a foreign national worker who is or has been a party to an approved employment contract with one employer, or has adjusted status, becomes employed by a new employer without first exiting the Commonwealth;

 

(w)      “Transitional worker” means a nonimmigrant alien admitted by the federal government for employment in the Commonwealth after November 27, 2009 pursuant to the special provision to ensure adequate employment, Section 702(a) [§ 6(d)], of Pub. L. No. 110-229;

(x)       “U.S. permanent resident” means a person who has been granted permanent resident status by the United States; and

 

(y)       “Umbrella permit” means a permit issued prior to November 28, 2009 by the Department of Labor, the Department of Commerce, or under the authority of the Attorney General, to expire on November 27, 2011 or as may be extended, that protects the status of the holder to remain in the Commonwealth until revoked or expired.

 

Modified 1 CMC § 3806(d), (g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from § 80-20.1-201 and made no changes to the content of subsections (a), (d), (g), (l)             and (s). The 2010 amendments changed subsections (h)-(i) and added all other subsections. The Commission added a semi-colon at the end of subsection (m) to correct a manifest error. The Commission struck the figures “21” and “18” from subsection (n) pursuant to 1 CMC § 3806(e). The Commission corrected the citation to Pub. L. No. 110-229 in subsection (w) pursuant to 1 CMC § 3806(g).

 

Part 100 -       Commonwealth Employment Policies

 

Subpart A -     Job Preference for Citizens

 

§ 80-20.1-101             Preference Requirement

 

(a)       It is the policy of the Commonwealth that citizens, CNMI permanent residents and U.S. permanent residents shall be given preference for employment in the private sector workforce in the Commonwealth. This requirement underlies all regulations with respect to the hiring, renewal, transfer, and termination of employees everywhere in the private sector in the Commonwealth. Job preference is of critical importance to the Commonwealth because its isolated location does not allow its citizens the luxury of nearby alternative job markets, and jobs for its citizens are a key underpinning of the Commonwealth’s small economy. Job preference is crucial to the Commonwealth’s efforts to provide a U.S. standard of living for its citizens without becoming dependent upon government welfare payments.

 

(b)       Job preference in the Commonwealth is consistent with, and a key underlying objective of, Pub. L. No. 110-229, the Consolidated Natural Resources Act (2008). The Senate Committee explained in its report: “Section 102(a) expresses Congressional intent to … [extend] the INA with special provisions for ... providing opportunities for locals to work.” The law directs the Secretary of the Interior “to assist employers in the Commonwealth in securing employees first from among citizens and nationals resident in the Commonwealth and, if an adequate number of such [local citizen] workers are not available, from among legal permanent residents, including lawfully admissible citizens of the freely associated states.” Emphasis added.

 

(c)       Job preference in the Commonwealth is consistent with, and expressly permitted by, Pub. L. No. 99-603, the Immigration Reform and Control Act (IRCA)       (1986). That act provides in Section 274B the following:

“(2)     EXCEPTIONS. --

Paragraph (1)  [the prohibition on discrimination on the basis of citizenship status]

shall not apply to --

“(A)     a person or other entity that employs three or fewer employees,

“(B)     a person’s or entity’s discrimination because of an individual’s national origin in the discrimination with respect to that person or entity and that individual is covered under section 703 “42 USC 2000e-2” of the Civil Rights Act of 1964, or

“(C)     discrimination because of citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government.

 

(d)       Notice to those entitled to preference.

The benefits of job preference for citizens cannot be attained without adequate notice to allow qualified citizens to compete fairly for available jobs. Both federal and Commonwealth law recognize the essential requirement of adequate notice. Under the circumstances prevailing in the Commonwealth, notice of every vacancy in a full-time job in the private sector in the Commonwealth for which any alien may be hired must be given to all those entitled to a preference by the broadest means available, which is the Department’s free interactive website, www.marianaslabor.net. Notice by other means is sufficient only if a person entitled to preference is hired.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The quotation marks in subsection (c)           were left exactly as provided in the original. The Commission corrected citations to federal public laws pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-105             Workforce Participation Objective

 

The stability and growth potential of the Commonwealth’s economy depend upon active participation by U.S. citizens, CNMI permanent residents, and U.S. permanent residents in the workforce. Because the Commonwealth has a relatively small population, the goal of a U.S.-equivalent standard of living cannot be attained by a workforce composed solely of U.S. citizens, CNMI permanent residents, and U.S. permanent residents. That workforce is simply too small. As with many small communities in the U.S. that support private sector businesses, the Commonwealth needs to draw portions of its workforce from beyond its borders. However, in doing so, the Commonwealth recognizes the need to ensure adequate and meaningful opportunities for its citizens, CNMI permanent residents, and U.S. permanent residents to participate in the local workforce. The workforce participation objective is a means for accomplishing that goal.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Subpart B -     Secondary Preference for FAS Citizens

 

§ 80-20.1-110             Secondary Preference for FAS Citizens

 

FAS citizens who are currently in the Commonwealth shall be given a secondary preference for employment within the Commonwealth. FAS citizens are permitted by free association compacts with the United States to enter and work in the U.S. For that reason, FAS citizens are an available resource to augment the Commonwealth workforce.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Subpart C -     Workforce Support from Foreign National Workers and Transitional Workers

 

§ 80-20.1-115             Workforce Support from Foreign National Workers and Transitional Workers

 

Foreign national workers, transitional workers, and nonimmigrant aliens who fill jobs that support the CNMI economy, in an appropriate balance with the Commonwealth’s objectives regarding citizen employment, are a valuable resource to the Commonwealth and their work and contributions are important.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission added “and Transitional Workers” to the title of this section to be consistent with the table of contents in the original.

 

Subpart D - Collection of Administrative Awards

 

§ 80-20.1-120             Collection of Administrative Awards

 

The Commonwealth Employment Act of 2007, as amended in Section 4950, replaces the decisions in Smith & Williams v. Royal Crown Ins. Co., NMI Super. Ct. Small Claims Nos. 06-0676 et al. (February 5, 2007) and Zhou v. Oceania Ins. Corp., NMI Super. Ct. Small Claims Nos. 08-0452 et al. (February 5,2009) so that complainants holding unpaid awards under orders issued by the Administrative Hearing Office of the Department of Labor may proceed with collection actions in the Commonwealth courts without first exhausting collection remedies at the Department of Labor. The Department may elect, but is not required, to pursue collection actions either against bonding companies or employers. In general, the Department will not pursue collection actions in individual cases because of resource constraints.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Part 200 -       Workforce Participation by Citizens, CNMI Permanent Residents, and U.S. Permanent Residents

 

Subpart A -     General         

 

§ 80-20.1-201             Appropriate Classification of Employers

 

(a)       Employers in the Commonwealth shall be classified under the North American Industrial Classification System (NAICS). NAICS is the standard used by Federal statistical agencies in classifying business establishments for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. business economy. NAICS was developed under the auspices of the federal Office of Management and Budget (OMB), and adopted in 1997 to replace the Standard Industrial Classification (SIC) system. Its manual and website include definitions for each industry.

 

(b)       Each employer shall select an appropriate NAICS classification for the nature of the enterprise or non-business activity conducted by the employer. The appropriate NAICS classification number shall be entered as required on Department forms.

 

(c)       Employers without a self-selected NAICS classification or with an inappropriate self-selected NAICS classification shall be assigned a classification by the Department which shall be binding on the employer. Assignment of NAICS classification by the Department (and denial of the self-selected classification) may be appealed by filing an appeal with the Administrative Hearing Office. See § 80-20.1-455(h).

 

Modified 1 CMC § 3806(c).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-205             Fair Qualification for Employment

 

(a)       Jobs performed in the Commonwealth shall be classified under the O*NET classification for each job in which any person is employed. The Occupational Information Network (O*NET) is a program of the US Department of Labor Employment and Training Administration that is the nation’s primary source of occupational information. The O*NET database, contains information on hundreds of standardized and occupation-specific descriptors. The database, which is available to the public at no cost, is continually updated by surveying a broad range of workers from each occupation. Information from this database forms the heart of O*NET OnLine, an interactive application for exploring and searching occupations. The database also provides a set of valuable assessment instruments for workers looking to find or change jobs.

 

(b)       Each employer shall select an appropriate O*NET classification for the each job performed by each employee or prospective employee for the employer. The appropriate O-NET classification shall be entered as required on Department forms.

 

(c)       Employers without a self-selected O*NET classification for each job or with an inappropriate self-selected O*NET classification shall be assigned a classification by the Department which shall be binding on the employer. Assignment of an O*NET classification by the Department (and denial of the self- selected classification) may be appealed by filing an appeal with the Administrative Hearing Office. See § 80-20.1-455(h).

 

Modified 1 CMC § 3806(c).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission standardized the spelling of “O*NET” pursuant to 1 CMC § 3806(g).

 

Subpart B -     Private Sector Workforce Participation

 

§ 80-20.1-210             Participation Objective

 

(a)       In the workforce of any employer, the percentage of citizens, U.S. permanent residents, and CNMI permanent residents and the immediate relatives of citizens, US. permanent residents, and CNMI permanent residents (“status-qualified participants”) employed shall equal or exceed the percentage of status-qualified participants in the private sector workforce unless attainment of this goal is not feasible within the current calendar year after all reasonable efforts have been made by the employer.

 

(b)       The workforce participation calculation applies at the time of hire of a foreign national worker, transitional worker, or other nonimmigrant alien. At that time, the actual number of employees who are status-qualified participants in the workforce is compared to the actual number of employees.

 

(c)       For purposes of workforce participation:

(1)       The workforce in the Commonwealth is defined in the same way as the labor force in the United States is defined, per the U.S. Department of Labor Bureau of Labor Statistics. It is based on the civilian noninstitutional population 16 years or older. (Persons in institutions such as nursing homes and prisons, and persons on active duty in the Armed Forces, are not included.) It is made up of persons with jobs (“employed”) and persons who are jobless, looking for jobs, and available for work (“unemployed”). Persons are available for work if they have a status or permit that allows work in the Commonwealth and are otherwise available for work. Persons who are not employed or unemployed are not in the workforce.

(2)       The private sector workforce is the number of employed and unemployed persons (as defined in subsection (c)(1) above) residing in the Commonwealth less the number of persons employed by the Commonwealth or other governments, including all types of government entities.

(3)       The percentage of status-qualified participants in the private sector workforce is the percentage derived from the decennial census or any other census conducted by the U.S. Census Bureau or from a survey as a part of the Current Population Survey or any other survey conducted by the U.S. Bureau of Labor Statistics, for a period of one year after the actual collection of the data (so that the data are not out of date), or, in the absence of current U.S. data as defined above, the percentage specified by the Department by regulation. The current percentage specified by the Department until other data become available is 30%.

(4)       Persons retained by an employer as consultants, advisers, or agents who are independent contractors are not included in the number of status- qualified participants.

 

(d)       Employment on more than one island. If an employer operates on more than one island, workforce participation is calculated in aggregate as to all islands, employees on any island are counted toward the aggregate minimum percentage on all islands.

 

(e)       Reductions in force.

The workforce participation objective applies to reductions in force.

 

(f)        No waivers.

No waivers are available with respect to the workforce participation objective.

 

Modified 1 CMC § 3806(c).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-230, entitled “Workforce Participation by Citizens and Permanent Residents.” The Commission corrected the capitalization of the word “employees” in subsection (e) pursuant to 1 CMC § 3806(f).

 

§ 80-20.1-215             Exemptions from Workforce Participation

 

(a)       Employers with fewer than five employees.

The provisions of Section 4525 of the Commonwealth Employment Act of 2007, as amended, do not apply to employers with fewer than five employees except as provided in this section. For purposes of this section, all employees are counted in determining whether an employer has fewer than five employees. All such employers are subject to the job vacancy announcement requirements for all job vacancies and all such employers are subject to the job preference requirements as to citizens, CNMI permanent residents, and U.S. permanent residents.

(1)       An employer against whom two or more judgments are entered in Department proceedings within any two year period automatically loses this exemption. No administrative proceeding is required to remove the exemption. A “judgment” for purposes of this section is a final action, which includes a decision of a hearing officer that has not been appealed within the time allowed, or a decision of the Secretary on a matter that has been appealed within the time allowed, provided however that a stay of the removal of the exemption may be provided by a court of competent jurisdiction. The exemption automatically becomes unavailable on the date on which the second judgment is entered. The term “two judgments” includes judgments in two separate actions or cases bearing two separate case numbers, and also includes judgments respect to two complainants in the same action or a case bearing only one case number.

(2)       All retail establishments that handle food stamps shall employ at least one citizen, CNMI permanent resident, or U.S. permanent resident.

(3)       An employer or business owner with fewer than five employees who has been in operation or who has held a business license in the Commonwealth for three years or more shall employ at least one citizen, CNMI permanent resident, or U.S. permanent resident.

 

(b)       Particular construction project.

An exemption for a particular construction project is available by written order signed by the Secretary.

(1)       A “particular” project means a project limited to one building or one infrastructure improvement. “Limited duration” means two years or less.

(2)       An application for an exemption for a particular construction project shall be made in writing, signed by the employer, stating the name of the project, the purpose of the project, the nature of the construction, the location of the project, the total cost of the project, the duration of the project, the number of foreign national workers to be employed on the project, and the O*NET job classifications of the workers on the project.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-235, entitled “Exemptions.” The Commission corrected the spelling of “O*NET” in subsection (b)(2) pursuant to 1 CMC § 3806(g).

 

Subpart C -     Private Sector Employment Preference

 

§ 80-20.1-220             Job Preference Requirement

 

(a)       Job preference for citizens, CNMI permanent residents, and U.S. permanent residents. Employers shall give qualified citizens, CNMI permanent residents and U.S. permanent residents preference for employment in the private sector workforce in the Commonwealth over foreign national workers, transitional workers, and nonimmigrant aliens. No employer may hire a foreign national worker, transitional worker, or other nonimmigrant alien if a qualified citizen, CNMI permanent resident, or US. permanent resident applies for the job in a timely fashion. Immediate relatives of citizens, CNMI permanent residents, and U.S. permanent residents are not included in the job preference requirement, which mandates Department assistance to individuals. (Immediate relatives of citizens, CNMI permanent residents, and U.S. permanent residents are included in the workforce objective which mandates employer attention to minimizing the employment of nonimmigrant aliens.)           

 

(b)       Notice of job vacancies.

In order to ensure maximum participation of citizens, CNMI permanent residents and U.S. permanent residents in the private sector workforce in the Commonwealth, persons in these status categories are entitled to notice of every full-time job that becomes available or open in the Commonwealth with a fair opportunity to apply and demonstrate qualifications.

 

(c)       Use of website for notice.

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 to all those entitled to a preference by the broadest means available, which is the Department’s free interactive website, www.marianaslabor.net. Notice by other means is sufficient only if a person entitled to preference is hired.

 

(d)       Other use of the website.

After satisfying registration requirements to maintain quality and in conformity with applicable procedures, any employer seeking to fill a vacancy and any person seeking employment may use the Department’s website.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-210, entitled “Job Preference.”

 

§ 80-20.1-225             Job Vacancy Announcement

 

(a)       Posting.

An employer who intends to employ a foreign national worker, transitional worker, or nonimmigrant alien on a full-time basis (under any new employment arrangement, any renewal of any existing employment arrangement, or any transfer) must post a job vacancy announcement on the Department’s website, www.marianaslabor.net.

 

(b)       Content.

The posted job vacancy announcement shall include a job description, a statement of the wages to be paid, a statement of all benefits to be provided, and, if applicable, a statement that the job is posted in connection with a proposed renewal or transfer of a foreign national worker or is posted in connection with a proposed on-island hire of a transitional worker or off-island hire of a transitional worker or nonimmigrant alien. A job vacancy announcement for which a transitional worker or nonimmigrant alien with another federal credential may be hired must have content that satisfies U.S. Labor requirements. See 20 CFR 655.

 

(c)       Job description.

The job description in a posted job vacancy announcement shall be defined by the appropriate Occupational Information Network (O*NET) classification. For specialty jobs not adequately defined by O*NET classifications, a parenthetical description may be appended to the closest O*NET classification.

 

(d)       Wages.

The statement of wages in a posted job vacancy announcement shall include the hourly or bi-weekly amount to be paid.

 

(e)       No waiver.

There are no waivers available with respect to the job vacancy announcement requirement.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-215. The Commission corrected the spelling of “O*NET” in subsection (c) pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-230             Employer Registration

 

Employers shall register online at www.marianaslabor.net in order to post job vacancy announcements. Registrants shall provide the Tax Identification Number issued by the Division of Revenue and Taxation and an industry code from the North American Industrial Classification System (NAICS) appropriate to their line of business. Approved employer registrations remain in effect until further notice from the Department.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-215(e).

 

§ 80-20.1-235             Job Referral

 

(a)       Job applicant use of the website.

Any person may use the Department’s website to post a resume, review posted jobs, and contact employers who have posted jobs.

 

(b)       Referral service.

The Citizen Job Placement Section shall provide a referral service for citizens, CNMI permanent residents and U.S. permanent residents in the Commonwealth. This service shall match information about prospective employees with information about job vacancies so that private sector jobs may be filled expeditiously with qualified citizens who are willing and able to do the work required by the employer.

 

(c)       Job applicant registration for referral service. Citizens, CNMI permanent residents, and U.S. permanent residents may register with the Citizen Job Placement Section for assistance in finding employment in the Commonwealth. Registrants shall complete a standard form for registration online. Registration remains active for six months.

 

(d)       Employment referrals.

With respect to each job vacancy announcement, the Citizen Job Placement Section may refer to the employer one or more qualified candidates within ten working days after the job vacancy announcement has been posted.

 

(c)       Employer action on referrals.

After receiving a referral from the Citizen Job Placement Section, an employer may take any of the following actions:

(1)       Any citizen, CNMI permanent resident or U.S. permanent resident may be hired rather than a person referred without any justification required to be submitted to the Department.

(2)       In cases where more than one applicant is referred by the Citizen Job Placement Section, any applicant referred may be hired rather than any other applicant referred without any justification required to be submitted to the Department.

(3)       Employers may reject persons who are referred using the employer’s normal hiring criteria in compliance with Commonwealth law with a short statement of reasons submitted to the Citizen Job Placement Section.

(4)       Employers may reevaluate their employment needs and hire no one for the proposed position. In this case, the employer shall notify the Department that the vacancy no longer exists.

 

(d)       Good faith effort to hire.

An employer must make a good faith effort to hire a citizen, CNMI permanent resident or U.S. permanent resident for a job vacancy apart from the referral service provided by the Department in the event that referral service is unsuccessful in locating a qualified applicant.

 

(e)       Employer Declaration.

In the event that a citizen, CNMI permanent resident, or U.S. permanent resident was not hired, within fourteen days after publication, the employer shall file a declaration on a standard form in digital format with respect to 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 is required if a citizen or permanent resident is hired.

 

(f)        Shortening of time.

Upon request to the Department and good cause shown, time requirements with respect to the job preference requirements may be shortened by the Department.

 

(g)       Certification.

If no qualified citizen, CNMI permanent resident, or U.S. permanent resident applicant is identified through posting on the website, referral by the Department, or good faith efforts to hire, the Department shall issue to the employer a certification of compliance document in the standard form prescribed by the Department.

 

(h)       Denial of certification.

If insufficient justification is provided by the employer for failure to hire a citizen, CNMI permanent resident, or U.S. permanent resident, or if no statement is received within 14 days, certification may be denied by the Department. A denial may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See § 80-20.1-455(h).)

 

Modified 1 CMC § 3806(c), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-220.

 

§ 80-20.1-240             Reductions in Force

 

(a)       The rights and remedies afforded all employees under this subchapter and the obligations imposed upon employers, are in addition to, and not in lieu of, any other contractual or statutory rights and remedies. In particular, the regulations in this subchapter do not excuse employers from the requirements of the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”), 21 U.S.C. § 2101 et seq. (1988)*, pursuant to which covered employers must provide affected employees and specified government entities at least 60 days notice of a mass lay-off or company closure.

 

(b)       Circumstances of economic necessity may require an employer to reduce the workforce or close the business. Employers have the right to make such decisions. However, because Commonwealth law requires job preference for citizens, CNMI permanent residents, and U.S. permanent residents, the right of employers of these participants to reduce their workforce with respect to these participants is not unlimited.

 

(c)       Before commencement of a reduction in force, an employer shall give at least 60 days written notice to the Department and at least 30 days notice to each affected employee on the standard form provided by the Department.

 

(d)       The effective date of a reduction in force is a date at least 30 days after the employees to be laid off have received notice of termination due to reduction in force, downsizing, or closure of the business.

 

(e)       The employer shall allow representatives from the Department to meet on employer premises with the employees to be laid off, during work hours. The purpose of the meeting shall be to advise the employees of their rights and responsibilities in connection with the lay-off, and to answer their questions.

 

(f)        The employer shall layoff foreign national workers, transitional workers, and nonimmigrant aliens before laying off citizens, CNMI permanent residents, and U.S. permanent residents in the same O*NET job classification or any O*NET job classification with lesser requirements except as agreed with the Department or in the event a job in a lesser O*NET classification is refused. The employer may lay off aliens in any order except that the employer shall lay off aliens other than citizens of the freely associated states before laying off citizens of the freely associated states in the same O*NET job classification or any O*NET job classification with lesser requirements except as agreed with the Department or in the event a job in a lesser O*NET classification is refused.

 

(g)       The employer shall cooperate with the Department by providing documentation as necessary to allow the Department to account for all of the laid off employees. The Department may conduct an investigation related to lay-offs in the event foreign national workers, transitional workers, or nonimmigrant aliens remain employed by the employer. Nothing in this section shall be construed to limit the right of employees to file meritorious complaints against an employer for violations of the Commonwealth Employment Act of 2007, as amended, the Minimum Wage and Hour Act, as amended, the WARN Act, or this subchapter, related to the lay-off.

 

* So in original. See Commission Comment.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); ; Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-420. The Commission corrected the spelling of “O*NET” in subsection (f) pursuant to 1 CMC § 3806(g).

 

The current version of 21 U.S.C. § 2101, referenced in subsection (a), contains food safety laws, not the WARN act.

 

Subpart D -     Private Sector Compliance with Resident Worker Fair Compensation Act

 

§ 80-20.1-245             The Resident Worker Fair Compensation Act

 

(a)       The Act[1] requires:

All benefits mandated by law to be given to non-resident workers, including, but not limited to subsidized food, housing, local transportation, health insurance, or medical expenses must also be given to resident workers as provided herein. These benefits may be provided in the form of in-kind benefits or in a cash equivalent, at the option of the resident worker. Such in-kind benefits or cash equivalent shall be provided to all resident workers in jobs where the standard hourly wage is less than $5.15, or the prevailing United States Federal minimum wage, whichever is higher. Any cash compensation benefit shall be added to resident workers’ base wages or salary.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission added an apostrophe to “workers” in the last sentence of subsection (a) to correct a manifest error. The Commission corrected the capitalization of “federal” pursuant to 1 CMC § 3806(f). Footnote in original.

 

§ 80-20.1-250             Classification of Workers

 

(a)       Federal minimum wage.

The term “prevailing United States federal minimum wage” as that term is used in the Resident Worker Fair Compensation Act means the federally-mandated minimum wage applicable to the Commonwealth.

 

(b)       Resident workers.

The term “resident workers” as that term is used in the Resident Worker Fair Compensation Act includes citizens, CNMI permanent residents, and U.S. permanent residents. Resident workers are covered by the Resident Worker Fair Compensation Act if they are paid an hourly wage less than $5.15 per hour. When the federally-mandated minimum wage applicable to the Commonwealth exceeds $5.15 per hour, then resident workers who earn less than that minimum wage will be covered.

 

(c)       Non-resident workers.

The term “non-resident workers” as that term is used in the Resident Worker Fair Compensation Act includes all foreign national workers, transitional workers, and other nonimmigrant alien employees who earn less than $5.15 per hour or the federally mandated minimum wage applicable to the Commonwealth, whichever is higher.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment:  The Commission corrected the capitalization of “federal” in subsection (a) pursuant to 1 CMC § 3806(f).

 

§ 80-20.1-255             Benefits

 

(a)       Benefits mandated by law.

The benefits mandated by law with respect to enforcement of the Resident Worker Fair Compensation Act are those related directly to and arising out of compensation involved in the employment relationship.

(1)       Benefits mandated by federal law are social security benefits and worker compensation benefits.

(2)       Benefits mandated by Commonwealth law are health insurance or payment of medical expenses.[2]

 

(b)       Subsidized benefits.

“Subsidized” benefits as that term is used in the Resident Worker Fair Compensation Act means benefits provided at employer expense the fair value of which is not deducted by the employer from the employee’s wages.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment:  Footnote in original.

 

§ 80-20.1-260             Payment of Benefits by Employers

 

(a)       Federal benefits.

Employers shall provide benefits under federal law to all employees as required under federal law.

 

(b)       Commonwealth benefits.

Employers shall provide benefits under Commonwealth law to resident workers as follows:

(1)       Health insurance. Health insurance coverage provided by an employer for nonresident workers, the premiums for which are not deducted from wages, shall be provided for resident workers covered by the Act on an equivalent basis.

(2)       Medical expenses. (RESERVED. The health care reform legislation recently enacted by the U.S. Congress has not yet been put into effect in the Commonwealth. After this legislation is in effect, further regulation with respect to medical expenses will be considered in light of any mandated insurance coverage that may apply.) 

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-414, entitled “Medical Insurance and Other Benefits.”

 

Part 300 -       Workforce Participation by Aliens

 

Subpart A -     FAS Citizens

 

§ 80-20.1-301             Status

 

FAS citizens may reside and work in the Commonwealth pursuant to the compacts between the Freely Associated States and the United States. The immediate relatives of FAS citizens are permitted under Commonwealth law to work in the Commonwealth so long as the FAS citizen sponsor resides in the Commonwealth.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-305             Secondary Preference

 

Qualified FAS citizens have a secondary preference for available jobs in the private sector in the Commonwealth. The Department shall provide assistance to FAS citizens residing are in the Commonwealth in the use of the Department’s website to post resumes and locate employment. FAS citizens who fill jobs that support the CNMI economy, in an appropriate balance with the Commonwealth’s objectives regarding citizen employment, are a valuable resource to the Commonwealth and their work and contributions are important.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-210(b).

 

§ 80-20.1-310             Job Preference

 

(a)       Statutory basis.

An underlying purpose of Pub. L. No. 110-229, the Consolidated Natural Resources Act, is to promote the employment of FAS citizens in priority over guest workers. Section 702(a)(2)(D) declares the intention of Congress to maximize the Commonwealth’s potential for future economic and business growth by “providing opportunities for individuals authorized to work in the United States, including citizens of the freely associated states.” Section 702(a) [Section 6(d)(2)] provides with respect to the goal of reducing the number of nonimmigrant alien workers to zero: “This system may be based on any reasonable method and criteria determined by the Secretary of Homeland Security to promote the maximum use of, and to prevent adverse effects on wages and working conditions of, workers authorized to be employed in the United States, including lawfully admissible freely associated state citizen labor.” Section 702(e) provides for “technical assistance, including assistance in recruiting, training, and hiring of workers, to assist employers in the Commonwealth in securing employees first from among United States citizens and nationals resident in the Commonwealth and if an adequate number of such workers are not available, from among legal permanent residents, including lawfully admissible citizens of the freely associated states.”

 

(b)       Method.

An FAS citizen who wishes to claim a secondary job preference shall provide to employers the necessary information about FAS citizenship. Once that information is provided by an applicant or is known to an employer, the preference for qualified FAS citizens over any other nonimmigrant alien shall operate as provided in subpart C of Part 200 after the preference for citizens, CNMI permanent residents, and U.S. permanent residents.

 

(c)       Access to dispute resolution.

FAS citizens may utilize the Department’s dispute resolution system as provided in Part 400.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission inserted “of” in between “number” and “nonimmigrant” in subsection (a) to correct a manifest error. The Commission substituted the reference numbers in subsections (b) and (c) pursuant to 1 CMC § 3806(d). The Commission corrected the citation to Pub. L. No. 110-229 pursuant to 1 CMC § 3806(g).

 

Subpart B -     Umbrella Permit Holders

 

§ 80-20.1-315             General

 

(a)       Umbrella permit categories.

Umbrella permits are in the following categories:

240B   Nonimmigrant aliens who are CNMI government employees

240D   Immediate relatives of citizens, CNMI permanent residents, and U.S. permanent residents

240E    Immediate relatives of nonimmigrant aliens who have permits to be employed or invest in the Commonwealth

240G   Foreign investors

240H   Foreign students

240K   Foreign national workers

240L    Foreign ministers

240M Foreign missionaries

240N   Foreign business owners

240O   Foreign retirees

240P    Nonimmigrant aliens who are witnesses and victims of crime

 

(b)       Term and conditions.

Umbrella permits have a term of two years from November 27, 2009 to November 27, 2011 or until the end of any extension of this period unless earlier revoked by the Department. Every umbrella permit was issued pursuant to conditions stated on the face of the permit. The conditions applicable to the various categories of permits are reproduced at Appendix B.

 

(c)       Report-back date.

Each permit has on its face a report-back date. This is a date on or before which the Department will confirm that the conditions under which the permit was issued continue to be met. Report-back dates were assigned in the categories described in Appendix C. The report-back date is an important measure for ensuring compliance with employment requirements. In the event the Department is unable to confirm that conditions continue to be met, the permit will be revoked.

 

(d)       Correcting permits.

Umbrella permits that contain incorrect information may be corrected by order of a hearing officer upon good cause shown. Application should be made to the Administrative Hearing Office.

 

(e)       Replacing permits.

Umbrella permits that have been lost may be replaced in connection with the holder’s next employment or registration. When the employment or registration is approved or completed, the umbrella permit will be replaced. The Department will provide confirmation, by telephone or e-mail, to a prospective employer that the holder is entitled to a replacement permit as a part of the Department’s employment documentation process.

 

(f)        Revocation of permits.

Umbrella permits may be revoked by order of a hearing officer for failure to comply with Commonwealth law or regulations; failure to appear at a hearing or failure to comply with an order of a hearing officer; material failure to comply with the terms and conditions of a permit (including payment of medical expenses); failure to register to transfer; unemployment beyond the period permitted by Commonwealth law or extensions granted by a hearing officer; employment without a permit issued pursuant to federal or Commonwealth regulations except employment allowed by Commonwealth regulations to be performed without a permit; material false statement in connection with the issuance, correction, or replacing of a permit; or conviction of a felony or more than one misdemeanor.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-320             Requirements for Permit Holders, General

 

(a)       Report-back date.

On or before this date, the holder of the permit must demonstrate continued satisfaction of the conditions under which the permit was granted. Satisfaction of conditions may be demonstrated by Department records, as with a current registration to transferor extension of time, online by filling out the Department’s form in this regard, by mailing in records, as with the family records for qualification as an immediate relative, or by appearing

personally if that is necessary to respond to a notice of hearing.

 

(b)       Health certification.

The holder of an umbrella permit must have a health certification from the Commonwealth Health Center or a provider approved by the Commonwealth Health Center that was issued no more than 12 months ago.

 

(c)       Documentation.

The holder of an umbrella permit must have a valid passport.

 

(d)       Registration.

Annual registration is required unless the federal authorities elect to register all nonimmigrant aliens in the Commonwealth pursuant to their authority under Pub. L. No. 110-229. Registration is required on or before the anniversary date of the current or last permit. Registration may be completed in person at the Guest Worker Section, by mail using a form available on the Department’s website, or (after July 1, 2010) on line. Immediate relatives may need to provide a bond or suitable alternative assurances to cover medical and repatriation expenses. With registration, a prior Commonwealth-issued work permit (for those who have no umbrella permit) may be amended or extended for good cause shown.

 

(e)       Adjustment of status while within the Commonwealth.

A person seeking to adjust status to permit work in the private sector may register to transfer. After registration, the person seeking to adjust status shall present a suitable employer pursuant to this subchapter, and obtain an order from the Administrative Hearing Office, upon good cause shown, permitting change of status and transfer employment. Exit from the Commonwealth is not required in order to adjust status.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment:  The Commission corrected the citation to Pub. L. No. 110-229 pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-325             Requirements for Permit Holders, Employment-Qualified

 

(a)       Employment-qualified permits.

(1)       Permitted employment. Holders of permits in 240D, 240G, 240H, 240N, 240O and 240P categories may, but are not required to, work. Holders of 240D and 240P permits may work without restrictions. Holders of 240G and 240N permits (and their immediate relatives) may work without restriction but only in the business enterprises in which they have invested. Holders of 240H permits may work only part-time and only in employment consistent with their educational program as provided in Department of Commerce regulations.

(2)       Required employment. Holders of permits in 240B, 240K, 240L, and 240M categories are required to maintain employment.

 

(b)       Employment.

Permit holders in the categories that require employment shall remain productively employed on a self-sustaining basis.

(1)       Full-time employment. Full-time employment is employment of 30 hours per week or more for a single employer. A foreign national worker may be employed by only one employer on a full-time basis.

(2)       Part-time employment. Part-time employment is employment of no more than 32 hours a month for a single employer. A foreign national worker may be employed by more than one employer on a part-time basis.

(3)       Minister and missionary employment, A minister or missionary may be employed by a bona fide religious undertaking without regard to the requirements of Part 200. “Bona fide non-profit religious undertaking” means a religious organization legally established or incorporated in the Commonwealth that is exempt from Commonwealth taxation or U.S. taxation as an organization described in 26 U.S.C. § 501(c)(3).

(4)       Service provider employment. A foreign national worker who is currently eligible to work in the Commonwealth and who has been employed successfully in the Commonwealth for ten years or longer may become a service provider and sell his or her services, but not any kind of goods or products or the services of others, upon approval by the Secretary and in compliance with the equivalent of section 80-20.1-330(e) (self-paid bonding), section 80-20.1-330(f) (financial capability), section 80-20.1-330(o) (self-paid medical expenses), section 80-20.1-330(u) (self-paid repatriation) and section 80-20.1-635(c) (self-paid Commonwealth fee). A service provider must be in good standing with respect to payment of all taxes and charges of the Commonwealth Health Center.

 

(c)       Transfer by administrative order.

Permit holders may transfer only pursuant to an administrative order issued by a hearing officer.

(1)       A foreign national worker may transfer, without regard to job classification, wage rate, or terms of employment, so long as the employment contract for the transferred worker is approved by the Department.

(2)       A foreign national worker may register to transfer at any time from thirty days prior to, and up to fifteen days after, the termination of the worker’s approved employment contract or at other times permitted by a hearing officer or this subchapter. In the event that the employer has failed to give the required thirty days notice of nonrenewal, the worker has an automatic extension for thirty days of the time to register. Registration to transfer shall be on the Department’s standard form and shall allow the foreign national worker thirty days in which to find employment and file an employer intent form identifying the prospective employer and employment.

(3)       Extensions of time within which to locate an employer may be granted by the Administrative Hearing Office upon application submitted within ten days of the report-back date on an umbrella permit or the expiration of the thirty-day period following registration or the expiration of any prior extension of time.

(i)        The Department has the discretionary right to grant or deny an extension. Unemployed foreign national workers create a risk of additional burdens for Commonwealth tax payers, and Commonwealth law grants no right to an extension of time to transfer. Any applicant for an extension of time must assume full responsibility for medical and repatriation expenses under terms that the hearing officer finds sufficient to avoid possible burdens on Commonwealth taxpayers and must pay the administrative fee assessed to meet the Department’s costs in handling extension requests. No fee waivers will be granted.

(ii)       Extensions of time may be granted upon a showing that the applicant holds a valid umbrella permit, has had a prior history of successful employment in the Commonwealth, has located a named employer for a specified job and needs additional time to complete arrangements or has described in detail specific skills to become successfully employed, recent actions taken to locate work, and specific facts that support reasonable cause to conclude that employment will be located within the next thirty days.

(iii)      The hearing officer will consider the applicant’s written application and may, but is not required to, consider the Department’s records as to the applicant’s employment history, registration, permit, and prior requests for extensions of time in deciding whether to grant an extension of time. The Department has no obligation to make any investigation with respect to an applicant’s circumstances or to develop any factual record or to inquire into the credibility of claims. The hearing officer may consider any extended period of unemployment as reasonable cause to conclude that employment will not be located within the next thirty days.

(iv)      Nearly all individual employment situations are different, and the fact of the grant of an extension of time to any particular applicant provides no support for the grant of a request made by any other applicant unless that

support is stated in specific detail in the application.

(v)       Extensions of time, if granted, are generally for thirty days and may be granted for longer periods depending on the applicant’s skills, the circumstances of the applicant’s search for employment, and the Department’s available resources to deal with extension requests. No applicant has any entitlement to any specific period of extension.

(vi)      In the event a request for an extension of time is denied on the written record, a request may be submitted for reconsideration with a hearing. See § 80-20.1-485(i), § 80-20.1-615.

(4)       A foreign national worker who remains in the Commonwealth after the expiration of the employer’s responsibility for medical expenses shall be personally responsible for his or her medical expenses, and failure to pay outstanding bills for medical expenses or lack of means to pay significant medical bills that may be incurred in the future may be considered by hearing officers under appropriate circumstances with respect to eligibility to transfer.

(5)       A foreign national worker may not transfer to an employer on the Barred List or an employer lacking sufficient financial capability to ensure payment of obligations for wages, medical expenses, and repatriation expenses.

(6)       Each employer intent form shall circulate to all sections within the Department. If no objection is received, a hearing officer may issue an order granting permission to transfer. If an objection is received, the employer or employee may make a written offer of compliance which may be considered and approved or rejected without a hearing, or a hearing officer shall conduct a hearing on the objection and the burden of proof is on the objecting officer of the Department. After grant of permission to transfer, the standard procedures for transfer will apply. (See § 80-20.1-330(s)). Denial of permission to transfer may be appealed. (See § 80-20.1-490.)        

 

(d)       Identification.

A foreign national worker must keep his or her identification card in his or her personal possession at all times during the worker’s working hours or when on a plane or boat during business hours. “Personal possession” means actual physical possession on the person or within the immediate reach of the person. Personal possession shall not be a requirement when the foreign national worker is receiving medical treatment or when physical possession would not be practicable, at which time the identification card shall be kept within a reasonable distance of the foreign national worker. This requirement is not in conflict with the Anti-Trafficking Act of 2005 which makes confiscation of travel documents for the purpose of controlling an alien’s movements a criminal offense. A foreign national worker who is not currently employed under an approved employment contract (and therefore cannot be located at the employer’s address)         must provide a current residence address and telephone contact to the Department and update that information as necessary so that the foreign national worker may be located by the Department.

 

(e)       Exit after the contract term.

Each foreign national worker is required to exit the Commonwealth within thirty days after the date of termination of an approved employment contract unless the contract is renewed, or a case or transfer is pending, or the worker has filed for an extension in connection with processing a transfer or filing a complaint.

 

(f)        Stay for litigation purposes.

(1)       Extension for purposes of filing a claim. An automatic extension of an additional thirty days to exit the Commonwealth after the date of termination of a contract is available if the foreign national worker is in the process of preparing a complaint to be filed with the Labor Department, a complaint in a civil matter to be filed with the any court, or a complaint to the Department of Public Safety with respect to a criminal matter.

(2)       Extension by order of a hearing officer. A foreign national worker who attends a mediation session after filing a complaint (see section 80-20.1-465) may request an extension of time for departure from the Commonwealth from the hearing officer. In deciding a request for extension of time the hearing officer shall consider whether the foreign national worker is likely not to appear at the hearing, the foreign national worker may continue a fraudulent scheme to the detriment of the Commonwealth, or equivalent circumstances exist. A hearing officer’s order granting an extension of time shall also set an initial hearing date in the matter. A denial of a request for an extension of time may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See section 80-20.1-455(h).)

(3)       Extension by order of a court. A foreign national worker who files an action with a court may request from a court an extension of time for departure from the Commonwealth and permission to seek temporary work pending resolution of the case. The court order in these regards shall be presented to the Chief of the Enforcement Section who shall allow temporary work on the same terms as would be available from a hearing officer.

 

Modified 1 CMC § 3806(c), (d), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former sections § 80-20.1-412 and 418, entitled “Standard Conditions of Employment” and “Transfer by Administrative Order,” respectively. The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-330             Requirements for Employers, Full-time Employment of Permit Holders

 

(a)       General.

(1)       Business employer. An employer of any foreign national worker other than a domestic helper, farmer, or household maintenance or yard worker must hold a business license. An employer who holds a business license may be a corporation, partnership, or other legal entity, or may be a single individual person in a sole proprietorship.

(2)       Non-business employer. A non-business employer is a single individual person who is not incorporated or operating as a partnership or limited liability company and who does not have a business license. A non-business employer may employ a foreign national worker only as a domestic helper, a farmer, a household maintenance worker, or a yard worker.

(3)       Employment permitted. An employer may employ any foreign national worker holding an umbrella permit or other current employment credential in any job category, in compliance with the job preference and workforce participation requirements in Part 200.

 

(b)       Written employment contract.

In order to prevent disputes and to help ensure employment under lawful conditions, full-time employment of a foreign national worker must be pursuant to a written employment contract. A standard form contract is provided by the Department for this purpose. Equivalent contract forms may be used.

 

(c)       Department approval.

In order to ensure compliance with Commonwealth law and to guard against unfair employment practices, Department approval is required for each employment contract with a foreign national worker. An application for approval of an employment contract must be signed by a director, officer, or manager of a corporation or other business organization and must submitted to the Department on a standard form provided by the Department or the equivalent in person by an employee of a corporation or other business organization who shall present sufficient identification and proof of status. An application must be signed and submitted in person by a non-business employer. No person who is an agent and no person holding a power of attorney may sign or submit an application. Approval or denial of the application shall be on a standard form. A denial may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See § 80-20.1-455(h).) 

 

(d)       Documentation.

An application for approval of an employment contract shall be accompanied by the following documentation:

(1)       Certification of compliance with the job vacancy announcement requirements.

If posting of a job vacancy announcement is required (see Section 80-30.2-465* above), the application must be accompanied by a certification that the job vacancy announcement requirement has been met.

(2)       Proposed employment contract. A standard form contract provided by the Department and signed by the foreign national worker that complies with all applicable Commonwealth laws.

(3)       Employer waiver, consent and certification. A waiver, consent, and certification shall be provided in the form provided by the Department.

(i)        A waiver shall be provided of rights to confidentiality concerning records with respect to the employer in the possession of other government agencies. Such records may be made available to the Department upon its request, for purposes of administering the labor laws.

(ii)       An express written consent shall be provided with respect to administrative inspections by the Department of the employer’s worksites.

(iii)      A certification shall be provided, under penalty of perjury, by the employer of satisfaction and compliance with all Commonwealth statutory and regulatory requirements for preference for the employment of citizens, CNMI permanent residents and U.S. permanent residents; and an attestation that the statements made in the application the contract, and the supporting papers are true.

(iv)      A non-business employer (an employer who does not have a business license) must certify, in addition, that he or she is not receiving certain specified government assistance and has met the financial requirements.

(See § 80-20.1-330(f)(2).)     

(4)       Receipt for payment of fee. Receipt for payment of the fee required under § 80-20.1-635.

 

(e)       Approved security contract.

Prior to the commencement of work by a foreign national worker, an employer shall submit to the Secretary a bond or other security arrangement providing financial assurance, in an amount acceptable to the Secretary, for the faithful performance of the obligations of the employer for payment of wages and overtime, payment of medical expenses, and payment of repatriation expenses for the worker. The Secretary will accept bonds from insurance companies licensed by and in good standing with the Department of Commerce.

 

(f)        Employer capability to meet financial obligations.

An employer must be financially able to meet the obligations of an employment contract. The Department shall evaluate employer financial capability upon receipt of an application for an approved employment contract (initial, renewal, or transfer).

(1)       Financial requirements for business employers. The Manager of the Guest Worker Section may request such evidence of financial capability as is required for an evaluation of the financial capability of the business. The Manager of the Guest Worker Section may reject an application for an approved employment contract upon a finding that the employer has presented insufficient evidence that the employer is financially capable.

(2)       Financial requirements for non-business employers. A non-business employer is a single individual person who is not incorporated or operating as a partnership or limited liability company and who does not have a business license.

(i)        Non-business employers may employ full time foreign national workers only as domestic helpers, farmers, household maintenance workers, and yard workers.

(ii)       Non-business employers must not currently be receiving nor within the past year have received assistance from the Nutrition Assistance Program, Security Supplemental Income from the Social Security Administration, any government subsidy in the form of public utilities from the Commonwealth Utilities Corporation, or low income housing from the Mariana Islands Housing Authority.

(iii)      A non-business employer must earn an annual wage or salary equal to or greater than 150% of the United States Department of Health and Human Services Poverty Guidelines for the Territory of Guam.

(iv)      Members of a household may aggregate their income for purposes of qualifying as a non-business employer, but every person whose income is considered for purposes of meeting the financial requirements of this section must sign the foreign national worker’s approved employment agreement and thereby becomes fully responsible, jointly and severally, for all of the employer’s obligations under the agreement.

(3)       Tax standing. An employer must be in good standing with respect to the payment of all taxes in order to employ foreign national workers and, if requested by the Department, shall provide a certification of good standing

from the Department of Revenue and Taxation.

(4)       Outstanding awards, billings, and complaints. An employer must have no outstanding unpaid awards arising out of Department proceedings or outstanding billings on behalf of a foreign national worker from the Commonwealth Health Center that are more than 60 days in arrears, except matters on appeal. An employer with more than one outstanding complaint pending with the Department may not be a suitable employer. A proposed employment contract with a foreign national worker may be rejected if the employer has presented insufficient evidence that outstanding judgments or complaints should not disqualify the employer.

 

(g)       Barred List.

The Administrative Hearing Office shall maintain a Barred List containing the names of employers who have been barred from employing foreign national workers in an administrative order of a hearing officer, or in an order by the Secretary on appeal. The Barred List is available to the public. No employment contract shall be approved for an employer on the Barred List. Employers barred for a specific period of time shall be removed from the Barred List upon the expiration of the specified time period. Employers barred permanently may petition the Administrative Hearing Office to be removed from the Barred List.

 

(h)       Contract term.

The usual approved employment contract provides for a one-year term. An employer and employee may agree on a two-year term, provided however that a foreign national worker employed under a two-year contract must provide a new health certification within the first month of the second year under the contract. Employers with special needs or specialty jobs may contract for a shorter period of time than one year.

 

(i)        Wage rates.

Wages shall be stated in hourly terms unless the foreign national worker is overtime exempt, in which case wages shall be stated in bi-weekly terms. The wages of domestic helpers, farmers, household maintenance and yard workers shall be stated in hourly terms. No foreign national worker employed pursuant to this subchapter shall be paid less than the minimum wage provided by law. An approved employment contract shall provide that any future increase in the applicable minimum wage prior to the termination of the contract shall apply to work performed under the contract on or after the effective date of the increase.

 

(j)        Location of worksite.

A foreign national worker may have one or more worksites, located on one or more islands, however the principal island where a foreign national worker will be assigned to work must be stated in the approved employment contract.

 

(k)       Hours of work.

The hours of work shall be specified in the approved employment contract. Overtime work may be offered by the employer but not required. Any period of time during which the worker is required to be present at any location within the Commonwealth designated by his or her employer shall be considered working hours for purposes of determining wages and overtime pay. If a foreign national worker accepts employer-supplied housing, the employer shall not require the worker to remain in the housing during non-working hours or take or threaten to take any adverse action against the worker for refusing to remain in the housing during non-working hours. A domestic helper who lives in the same household as the employer and is on “sleeping time” or “rest time” is not on working hours.

 

(l)        Payment of wages.

A foreign national worker shall be paid biweekly in cash or by check or direct deposit in a United States bank payable in United States currency in an amount specified in the approved employment contract. Receipts for cash payments must be signed by the foreign national worker.

 

(m)      Deductions from wages.

Each expense of the employer to be deducted from the wages of a foreign national worker shall be specified in the approved employment contract and the total deductions shall not exceed thirty percent of a worker’s bi-weekly wages or the minimum permitted under the Fair Labor Standards Act (FLSA), whichever is less.

(1)       Deductions by non-business employers. Non-business employers may deduct up to $100 per month for housing and up to $100 per month for food, local transportation and all other benefits even though the $200 per month deduction may exceed the thirty percent limitation.

(2)       Deductions under court or administrative order. Employers may deduct amounts required or allowed by court or administrative order without regard to the thirty percent limitation.

(3)       Documentation of deductions. The amount of and reason for each deduction shall be identified on the wage statement or other documentation of wage payment provided to the employee.

(4)       Loans and advances. Loans and advances may be agreed between an employer and foreign national worker in writing signed by the worker. However, repayment of loans and advances occurs under a separate arrangement and may not be accomplished pursuant to a deduction from wages absent a court or administrative order. Loans may not be made for recruitment, processing, or other employment-related fees.

 

(n)       Documents.

A copy of the employment contract shall be provided to the foreign national worker by the employer within a reasonable time after signing by the parties. No employer may withhold from any foreign national worker any passport, entry or work permit, contract, or other document related to the status of the foreign national worker.

 

(o)       Medical expenses.

Employers shall pay all expenses of necessary medical care for foreign national workers except that co-pay requirements under insurance contracts may be deducted from wages in compliance with § 80-20.1-330(m) and except as provided in this subchapter. (See § 80-20.1-335.) The last employer of record shall be responsible for medical expenses of the foreign national worker for up to a maximum of 96 days after termination of the approved employment contract to allow for the completion of transfers, cases, and appeals.

 

(p)       Other Benefits.

Employers may but are not required to provide housing, food, transportation, and other benefits beyond medical care; and foreign national workers may not be required by an employer to utilize housing, food, transportation, or other benefits. If the employer provides housing, minimum standards apply. (See § 80-20.1-420.)

 

(q)       Contract amendment and reduction in hours.

An extension to an existing contract for up to six months or an amendment of the other terms of an existing contract may be agreed by the parties at any time during the term of the contract and filed with the Department on the standard form provided by the Department for that purpose. A contract extension or amendment does not require prior approval of, but may be denied by, the Department. A denial may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See § 80-20.1-455(h).) 

 

(r)        Contract renewal, non-renewal, and termination.

(1)       Renewal. An approved employment contract may be renewed. No right to renewal for either the employer or foreign national worker is conferred by Section 4935 or any other section of the Commonwealth Employment Act of 2007, as amended, or this subchapter. Renewal is approved or denied by the Department taking account of the interests of the Commonwealth with respect to employment of citizens and permanent residents and enforcement of the requirements of the Commonwealth Employment Act of 2007, as amended, and this subchapter.

(i)        Form. A request for renewal is made on the standard form provided by the Department. Renewal may be for any time period, provided however renewals shall be for no less than six months and no longer than the maximum allowed for initial contracts. (See 550.3-115*.)  

(ii)       A nonrefundable, nontransferable fee for renewal, as provided in Section 80-60.8*, must be paid at the time the request is submitted.

(iii)      Time. A request for renewal shall be submitted no earlier than forty-five days prior to the termination date of the approved employment contract. Late fees may be imposed if a renewal request is submitted after the contract termination date. (See §550-60.8*.) Renewal requests filed more than sixty days after the contract termination date will be denied. A denial may be appealed to the Administrative Hearing Office. (See §50-50.6-155*.) 

(iv)      Documents. A request for renewal shall be accompanied by the signed employment contract and an approved security contract covering the foreign national worker to be renewed. An employer may submit a new employment contract with new terms as necessary. A request for renewal may be submitted and approved without an accompanying health certificate, but the health certificate must be submitted within sixty days of approval or the renewal is subject to revocation. A request for renewal may be submitted and approved if the Job Vacancy Announcement is on file (on line), but the JVA must be certified within sixty days of approval or the renewal is subject to revocation.

(v)       No disputes. A request for renewal shall be accompanied by a certification by the employer and the employee that there are, as of the date of the application, no disputes pending between them, no complaints outstanding, and no grievances unaddressed.

(vi)      Outstanding obligations. A renewal may not be granted if the employer has any outstanding payment more than sixty days in arrears with respect to any obligation to pay medical expenses or to pay any judgment in a Department proceeding, except those on appeal, or if the employer is on the Barred List.

(vii)     Effect of denial. The denial of a request for renewal may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See § 80-20.1-455(h).) While an appeal is pending, an employee may continue to work for the employer.

(2)       Non-renewal. An employer may elect not to renew an approved employment contract of a foreign national worker. No reason need be given.

(i)        Notice. An employer shall provide to the foreign national worker, obtain a signature acknowledgment from the worker for, and file with the Department a notice of the employer’s intent not to renew on a standard form provided by the Department at least thirty days before the termination date in the approved employment contract.

(ii)       Effect of failure to give notice. If an employer fails to give proper notice pursuant to subsection (a) above, the employer remains the last employer of record (responsible for medical expenses and repatriation) and is liable to pay the employee’s full wages up to a maximum of thirty days beyond the termination date of the contract until notice is given and thirty days has elapsed. After the termination date of the contract, the employee is not required to work for the employer in order to be entitled to wages for the thirty-day period. At any time until thirty days after the termination date of the contract, the employee may register to transfer and proceed under § 80-20.1-330(s) or file a complaint and proceed under § 80-20.1-455(g) but may not pursue both avenues simultaneously.

(3)       Termination. The parties may terminate an approved employment contract.

(i)        Termination for cause. During the, term of the contract, an employer or employee may terminate an approved employment contract for cause as defined in the contract. An employer shall give written notice to the foreign national worker and to the Department on a standard form provided by the Department at least ten days prior to the termination date. A foreign national worker may file a complaint with the Administrative Hearing Office contesting a termination for cause. The Department may investigate a termination to determine if the termination was in compliance with Commonwealth law and this subchapter.

(ii)       Termination by consent. An employer and employee may terminate an approved employment contract by consent during the term of the contract. The consent of the employee shall be evidenced by an appropriate writing filed with the Department at least ten days prior to the termination date.

(iii)      Termination by expiration. An approved employment is terminated automatically on the date of expiration of the term of the contract.

(iv)      Last employer of record. Under any termination of an approved employment contract, the employer remains the last employer of record (responsible for medical expenses and repatriation) until the foreign national worker transfers, is repatriated; or in the case of medical expenses, a period of 96 days expires.

 

(s)        Transfer.

An application for an approved employment contract in the case of a transfer must be submitted within the time allowed by administrative order. If an application for an approved employment contract is filed and has correctable deficiencies, an automatic extension of ten days from the end of the time allowed by administrative order is afforded to file a proper application. The employer and the foreign national worker are responsible for staying in contact with the Department and ensuring that no deficiencies remain at the end of the automatic extension. No further extensions will be granted and the transfer

will be automatically denied if deficiencies remain. Denial of a transfer may be appealed to the Administrative Hearing Office within fifteen days after the date of the denial. (See § 80-20.1-455(h).)         If a transfer is completed as required by this section, the new employer shall assume all legal responsibilities for the transferred foreign national worker, including but not limited to the costs of repatriation and medical expenses incurred on and after the date of approval of the employment contract. The new employer is not responsible for any of the obligations of the former employer up to the date of approval of the employment contract.

 

(t)        Accountability.

Each employer is accountable for every foreign national worker for whom the employer has had an approved employment contract in effect at any time during the preceding calendar year and shall ensure that such -persons are currently employed by the employer, have transferred to another employer by administrative order, have exited the Commonwealth, are otherwise accounted for as remaining in the Commonwealth lawfully, or are deceased. In the event that an employer becomes unable to account for a foreign national worker, the employer shall report to the Department within fifteen business days.

 

(u)       Responsibility for costs of repatriation.

(1)       Last employer of record. The last employer of record is the employer under the most recent approved employment contract, on file at the Department, with respect to the foreign national worker. The last employer of record is responsible for all of the costs of repatriation of a foreign national worker. Repatriation costs include the costs with respect to the embalming and transport of deceased workers back to the point of hire.

(2)       Employment on temporary work authorization. An employer of a foreign national worker under temporary work authorization (see § 80-20.1-470(c)) is not responsible for repatriation costs.

(3)       Illegal employment. An employer who employs a foreign national worker in violation of Commonwealth law or these regulations may be assessed full or partial repatriation costs by the Department.

(4)       Joint and several liability. In situations in which there is a last employer of record and a foreign national worker has also been employed illegally by another employer, the Department may assess repatriation costs entirely to the last employer of record, entirely to the illegal employer, or partially to both employers. If a foreign national worker has been employed illegally and a last employer of record is assessed repatriation costs, that employer may recover the assessed repatriation costs from the illegal employer in an action before the Commonwealth Superior Court.

(5)       Appeals. Within fifteen days of the issuance of an assessment of repatriation costs, any person or party affected by the assessment order may appeal the order in accordance with § 80-20.1-490. A standard form for an appeal is provided by the Department.

 

* So in original. Citation is to a non-existent section of the regulation.

 

Modified 1 CMC § 3806(c), (d), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former sections § 80-20.1-404, 412 and 416, entitled “Approved Employment Contract,” “Standard Conditions of Employment” and “Contract Renewal, Non-renewal and Termination,” respectively. The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-335             Requirements for Employers, Other than Full-Time Employment of Permit Holders

 

(a)       Part-time employment.

Any business or non-business employer may be a part-time employer.

(1)       Hiring for part-time. An employer may employ a foreign national worker who holds an umbrella permit on a part-time basis for no more than 32 hours a month. No filing with the Department is required.

(2)       Full-time employer responsibilities. An employer who has an approved employment contract with a foreign national worker for full-time work has no liability for wages for part-time work performed by that worker for another employer. The full-time employer remains responsible for medical expenses and repatriation obligations under the full-time employment contract with the foreign national worker.

(3)       Part-time employer responsibilities. An employer who hires a foreign national worker for part-time work under circumstances in which the worker does not have a contract with another employer for full-time work becomes responsible for medical expenses and repatriation of the part-time employee until the employee stops working for the part-time employer.

 

(b)       Contract with a service provider.

An employer who contracts for services with a foreign national worker who holds a service provider permit issued by the Department is not responsible for medical or repatriation expenses of the service provider and is not required to provide any bond to secure payment. A part of the service provider’s undertaking to secure the permit is sufficient financial capability and assurances to the Commonwealth in these regards.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-412, entitled “Standard Conditions of Employment.”

 

Subpart C -     Transitional Workers

 

§ 80-20.1-340             General

 

The Commonwealth is a very small jurisdiction located very far from the administrative centers of the federal government. It has a very small economy that suffers from isolation, limited natural resources, limited transportation availability, a very small tax base, and the necessity to support services for its people that in the rest of the United States would rest on a much larger geographic and economic base. The presence of nonimmigrant aliens who enter the Commonwealth for employment helps support the economy if the aliens are gainfully employed under fair circumstances that do not generate undue disputes or financial burdens to the Commonwealth. The weaknesses of the controls in the U.S. immigration system with respect to preventing abuses of nonimmigrant aliens and failing to deport illegal aliens are well-documented, and many reform measures have been proposed in the U.S. Congress over the past decade to deal with these serious problems. The Commonwealth has had similar problems in the past, albeit on a much smaller scale in percentage and frequency terms. To deal with its problems, the Commonwealth has enacted a guest worker system that provides protection for both nonimmigrant aliens and Commonwealth taxpayers. Certain of those protections apply to transitional workers holding permits granted by the federal government because their employment in the Commonwealth is statutorily defined as temporary and subject to being reduced to zero and for that reason they are vulnerable, many transitional workers originally entered the Commonwealth on permits issued by the Commonwealth and have for many years relied on protections made available under Commonwealth law for which there are no analogs in federal law, and the social problems caused by failed employment arrangements with aliens fall almost exclusively on the Commonwealth’s taxpayers. These protections do not burden the federal system in any way. They simply protect the Commonwealth with respect to economic and social burdens that would occur in the Commonwealth’s unique circumstances if these protections were not available.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-345             Requirements for Employers of Transitional Workers

 

(a)       Notice.

Employers shall ensure that every transitional worker who enters the Commonwealth from another country is provided a notice in the standard form provided by the Department with respect to working conditions and requirements in the Commonwealth. Employers bringing transitional workers from countries requiring translation to other languages shall supply a translation. The notice shall be delivered to the transitional worker while in the home country before departure for the Commonwealth. Receipt of the notice shall be confirmed by the nonimmigrant worker upon arrival in the Commonwealth.

 

(b)       Orientation.

Employers shall ensure that every transitional worker who enters the Commonwealth from another country attends the first orientation session available after date of entry unless excused for illness or other unavoidable circumstance. The orientation program in Saipan shall be presented every Tuesday morning at 9:00 a.m. at the conference room, second floor, Afetna Square Bldg, San Antonio, Saipan, unless rescheduled or canceled by the Department. The orientation program on Rota and Tinian will be scheduled as necessary.

 

(c)       Standard employment requirements.

(1)       Employers shall ensure that the requirements with respect to health certification (§ 80-20.1-320(b)) and registration (§ 80-20.1-320(d)) are met by each transitional worker.

(2)       Employers shall ensure that the requirements with respect to written contracts (§ 80-20.1-330(b)), bonding (§ 80-20.1-330(e)), and standard conditions of employment (Sections 40.2-451-470*) are met with respect to each transitional worker.

(3)       Employers are responsible for the costs of repatriation of each transitional worker. (§ 80-20.1-330(u))

 

* So in original. Citation is to a non-existent section of the regulation.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment:  The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

Part 400 -       Labor Investigations and Dispute Resolution

 

Subpart A -     Safe Workplace Conditions

 

§ 80-20.1-401             Safe Workplace Conditions

 

Every employer shall provide safe workplace conditions for all employees, including domestic helpers and farmers.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-405             Safety Devices and Safeguards

 

Every employer shall furnish and ensure the use of such safety devices and safeguards (such as machine guarding, electrical protection, scaffolding, safe walking and working surfaces, means of egress in case of emergency or fire, ventilation, smoke exposure protection, personal protective equipment for eyes, face, head, and feet, fire protection, and sanitation)       and shall adopt and use such means and practices as are reasonably adequate to render safe the employment and place of employment of all employees.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission inserted a period at the end of this section to correct a manifest error and created the title of this section.

 

§ 80-20.1-410             Drinking Water

 

An employer shall provide an adequate supply of drinking water and sufficient and sanitary toilet facilities at the worksite or reasonable access there to.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

§ 80-20.1-415             Occupational Safety and Health Regulations

 

The U.S. Department of Labor’s Occupational Safety and Health regulations as published and amended in the Code of Federal Regulations are recognized as the minimum standards required of every employer in the Commonwealth.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section. The Commission corrected the spelling of “Safety” pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-420             Employee Housing

 

The U.S. Department of Labor’s regulations with respect to employer-supplied housing, 20 CFR 654, Subpart E, are recognized as the minimum standards required of every employer in the Commonwealth who elects to provide employee housing unless a variance is obtained from the Department.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission created the title of this section.

 

Subpart B -     Lawful Employment Practices

 

§ 80-20.1-425             Lawful Employment Practices

 

Every employer shall maintain sufficient documentation to demonstrate compliance with federal and Commonwealth employment requirements as provided in law and applicable regulations.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Subpart C -     Inspections and Investigations

 

§ 80-20.1-430             Procedure for Inspections and Investigations        

 

(a)       Inspections shall be conducted during normal business hours or, if an administrative warrant is obtained, at any other reasonable time under the circumstances.

 

(b)       The investigator shall present himself or herself to the authorized representative at the worksite and shall provide identification as a Department investigator. The investigator shall inform the authorized representative at the worksite that the worksite has been chosen for inspection by the Department, and shall furnish to such person a copy of the current statutes and regulations authorizing worksite inspections.

 

(c)       The investigator shall ask the authorized representative at the worksite if he or she consents to the inspection. If the authorized representative consents to the inspection, the investigator is authorized to inspect all areas of the worksite and premises. If the authorized representative refuses to permit entry, or does not consent to allow inspection of the worksite, the investigator may not proceed with the inspection unless an administrative warrant is obtained.

 

(d)       In all cases where the authorized representative refuses to permit entry, does not consent to allow inspection of the worksite, or unreasonably obstructs the investigator in carrying out the inspection, the investigator shall serve notice upon the authorized representative of an administrative hearing at which the employer shall be required to show cause why the employer should not be sanctioned.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-435             Violations

 

If upon inspection a violation is found of any provision of the Commonwealth Employment Act of 2007, as amended, the Minimum Wage and Hour Act, as amended, or the Department regulations promulgated pursuant to Commonwealth law, the investigator may, within thirty days:

 

(a)       Warning.

Issue a warning to the responsible party to correct the violation. If the responsible party does not comply within ten days and correct the violation, the Chief of the Enforcement Section may issue a notice of violation.

 

(b)       Notice of violation.

Issue a notice of violation to the responsible party. Upon issuance of a notice of violation, an action is opened in the Administrative Hearing Office with the Chief of the Enforcement Section as the complainant. If the notice of violation is issued in circumstances where the complaint has been filed with the Administrative Hearing Office by an individual complainant, the caption on the case may be amended to reflect the Chief of the Enforcement Section as the complainant.

 

Modified 1 CMC § 3806(e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-440             Inspections Pursuant to Warrant

 

For purposes of Section 4939(g) of the Commonwealth Employment Act of 2007, as amended, “reasonable suspicion” means specific facts about the suspected employer or worksite justifying inspection efforts beyond the norm for businesses of that type.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-445             Investigation

 

The Department may conduct investigations as necessary and appropriate to enforce the provisions of the Commonwealth Employment Act of 2007, as amended, and this subchapter to ensure lawful employment arrangements, payment of wages and overtime, working condition, employer-supplied benefits, and health and safety for employees. Pursuant to appropriate inter-agency arrangements, the Department may investigate related business license, tax, insurance, and other matters that intersect with its responsibilities for labor enforcement. In conducting these investigations, the Department’s investigator shall have all of the powers delegated and described with respect to inspections and investigations pursuant to Part 400 of these regulations and the powers to inspect any records that an employer is required to keep, to make copies of records, and to interview employees.

 

Modified 1 CMC § 3806(e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-240. The Commission substituted part numbers pursuant to 1 CMC § 3806(d).

 

Subpart D -     Adjudication of Disputes

 

§ 80-20.1-450             Jurisdiction of the Administrative Hearing Office

 

(a)       The Administrative Hearing Office shall have jurisdiction to conduct adjudicative proceedings with respect to all issues of fact and law arising under labor laws applicable in the Commonwealth.

 

(b)       Jurisdiction with respect to complaints.

(1)       Disputes involving citizens, CNMI permanent residents, and U.S. permanent residents. The Administrative Hearing Office shall have jurisdiction over complaints filed with the Administrative Hearing Office by U.S. citizens, CNMI permanent residents or U.S. permanent residents, and agency complaints filed by the Department, with respect to violations of the requirements of job preference and workforce participation pursuant to the Commonwealth Employment Act of 2007, as amended, and other violations of labor laws applicable in the Commonwealth.

(2)       Disputes involving foreign national workers. The Administrative Hearing Office shall have jurisdiction over complaints filed with the Administrative Hearing Office by foreign national workers, and agency complaints filed by the Department, with respect to violations of Commonwealth law and regulations regarding employment and other labor laws applicable in the Commonwealth.

 

(3)       Disputes involving other nonimmigrant aliens. The Administrative Hearing Office shall have jurisdiction over complaints filed with the Administrative Hearing Office by other nonimmigrant aliens with respect to violations of Commonwealth law and regulations regarding employment.

 

(c)       Jurisdiction with respect to appeals from denials issued by the Department.

The Administrative Hearing Office shall have exclusive jurisdiction over initial appeals from decisions of the administrative units of the Department denying applications, petitions, or requests of individual employers and employees.

 

(d)       Jurisdiction attaches upon filing.

Jurisdiction attaches upon the filing of a complaint or appeal, and no procedural or investigative document is required in order for the Administrative Hearing Office to hold a hearing on a complaint.

 

(e)       No jurisdiction over tourists.

The Administrative Hearing Office does not have jurisdiction with respect to the claims of tourists. Those claims are pursued in the Commonwealth Superior Court.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-430.

 

§ 80-20.1-455             Complaints and Actions in Labor Matters

 

(a)       Adjudicative proceeding.

“Adjudicative proceeding” means a judicial-type proceeding leading to the issuance of a final order. The parties to an adjudicative proceeding are one or more complainants and one or more respondents. A complainant is a person who is seeking relief from any act or omission in violation of a statute, executive order, contract, or regulation. A respondent is a person against whom findings may be made or who may be required to provide relief or take remedial action. A “person” in this context includes an individual, partnership, corporation, association or other entity or organization. A “party” to an adjudicative proceeding is a person or government agency admitted as a party to the proceeding.

 

(b)       Complaint.

“Complaint” means any document initiating an adjudicative proceeding, whether designated a complaint, appeal, or an order for proceeding, or otherwise. Registration by a foreign national worker to transfer may be deemed a “complaint” by a hearing officer under circumstances in which it is appropriate to do so and an order may issue. Each individual complainant shall file a separate complaint. Cases may be handled together, but complaints shall not cover the allegations of more than one complainant.

 

(c)       Case numbers.

Each case shall be assigned a unique case number at the time of the filing of the complaint. All pleadings of any kind shall clearly show the case number.

 

(d)       Location for filing.

A complaint and any other pleadings shall be filed at the office of the Department on the island where the employment occurred, unless good cause is shown.

 

(e)       Signature on pleading.

Each pleading shall be signed by the party filing it or by an attorney admitted to practice in the CNMI representing the party. The signature constitutes a certificate by the signer that he or she has read the pleading; that to the best of his or her knowledge, information, and belief, there are good grounds to support it; and that it is not filed for purposes of delay.

 

(f)        Filing of a job preference case.

Any citizen, CNMI permanent resident, or U.S. permanent resident who is qualified for a job, as described in a job vacancy announcement, may file a complaint making a claim for damages if an employer rejects an application for the job without just cause and the employer employs a person who is not a citizen, CNMI permanent resident, or U.S. permanent resident for the job.

(1)       Just cause. The term “just cause” for rejecting an application for employment includes the lawful criteria that an employer normally applies in making hiring decisions such as rejecting persons with criminal records for positions of trust, rejecting persons who present fraudulent or inaccurate documentation in support of the application; rejecting persons without an educational degree necessary for the position, rejecting persons with unfavorable recommendations from prior employment, rejecting persons with an employment history indicating an inability to perform the job successfully, rejecting persons with an educational background making it unlikely that the necessary education or training to hold the position could be accomplished successfully within a reasonable time; and similar just causes.

(2)       Criteria. Any criteria in making hiring decisions advanced in support of just cause must be consistent with the published job vacancy announcement for the job and must be a part of the employer’s established hiring procedures.

 

(g)       Filing of a labor case.

Any employer or employee may file a complaint with the Administrative Hearing Office regarding any violation of the Commonwealth Employment Act of 2007, as amended; the Fair Labor Standards Act, as amended; the Resident Worker Fair Compensation Act, or Public Laws 11-6 and 12-11, as amended, and the rules and regulations in this subchapter; or any breach of an employment contract, or any breach of the undertakings in any document filed with the Department.

 

(h)       Filing of a denial case.

In the event of an administrative denial under this subchapter, the employer or employee adversely affected by the denial (or both) may file a denial case (appeal of the denial) with the Administrative Hearing Office on a standard form provided by the office challenging the basis for the denial.

 

(i)        Filing of a consolidated agency case.

The Chief of the Enforcement Section may commence an action against an employer or employee for an alleged violation of the labor or wage laws in force in the Commonwealth by filing a complaint with the Administrative Hearing Office. The caption shall set forth the names and addresses of the parties. The complaint shall contain a short description of the nature of the alleged violation of law and the relief sought.

(1)       Agency complaints in complex cases. The Chief of the Enforcement Section may file an administrative complaint with the Administrative Hearing Office in any case in which an investigator determines that the nature of the violation, number of persons affected, possibility of retaliation against individual complainants, or urgency of resolving the matter requires that the Department prosecute a complaint.

(2)       Agency complaints in workforce participation and job preference cases. In the event that an employer fails to meet the workforce participation requirement or fails to hire a qualified applicant entitled to a preference and hires any nonimmigrant alien instead, the Chief of the Enforcement Section may file an administrative complaint with the Administrative Hearing Office on behalf of the applicant denied employment seeking damages, sanctions, and any other available relief.

(3)       Agency complaints in umbrella permit cases. The Chief of the Enforcement Section may file an administrative complaint to modify or revoke an umbrella permit for good cause shown.

 

(j)        No administrative rejection for untimeliness.

Failure to file within the statutory time limit (see subpart B of Part 600) shall not be grounds for refusal to accept the papers for a complaint or appeal.

 

(k)       No filing fee for complaints by indigents.

Indigent complainants may file in forma pauperis and are not required to pay a filing fee. The standards of the Commonwealth Superior Court with respect to waiver of fees for indigents shall be followed. A complainant who files in forma pauperis and is later found by a hearing examiner not to qualify for that status may be ordered to pay the filing fee. (For filing fees, see § 80-20.1-635.)

 

(l)        No retaliation.

An employer shall not retaliate against an employee for filing a complaint. Such retaliation is a separate cause of action against the employer.

 

(m)      No response to the complaint required.

The respondent may, but is not required to, file a written response to the complaint.

 

(n)       Assistance and representation.

Any party may be represented by counsel, at the party’s own expense. A party appearing pro se may be assisted by any person, regardless of whether that person is a lawyer, except that a person who is deportable or who has been the subject of debarment for past misconduct may not serve as an assistant. Each authorized counsel or assistant must file a written notice of appearance with the Administrative Hearing Office. A standard form for this purpose is provided by the Department.

 

(o)       Translation.

A party requiring the services of a translator to and from English shall provide a competent translator at their expense. The Administrative Hearing Office may require certification of a translator in order for the translator to participate in a hearing. A translator who has translated a document shall sign the document on its face as evidence of the translation. Such a signature constitutes a declaration, under the penalty of perjury, that the translator has accurately translated the document and has not included any statements beyond those made in the document. A hearing officer may disqualify a person from participating in a proceeding as a translator, upon a finding, supported by credible evidence, that the person is not sufficiently competent or truthful as a translator.

 

Modified 1 CMC § 3806(d), (g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-426. The Commission removed the duplicate “regardless of” in the second sentence of subsection (n) to correct a manifest error. The Commission substituted part and section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-460             General Procedures

 

(a)       Rules of practice.

These rules in subpart D implement the Administrative Procedures Act and are generally applicable to adjudicative proceedings in all actions. Upon notice to all parties, a hearing officer may, with respect to matters pending before that hearing officer, modify or waive any rule herein upon a determination that no party will be prejudiced and the ends of justice will be served.

 

(b)       Pro se litigants.

In applying the rules of procedure to adjudicative proceedings, a hearing officer shall give added accommodation to parties appearing pro se to ensure that no party is prejudiced and that the ends of justice will be served. The hearing officer should take all steps necessary to develop the record fully, including the record adverse to the Department.

 

(c)       Separation of functions.

No officer, employee, or agent of the Commonwealth engaged in the performance of investigative or prosecutorial functions in connection with any proceeding shall, in that proceeding or a factually related proceeding, participate or advise in the decision of a hearing officer except as witness or counsel in the proceedings.

 

(d)       Recusal of a hearing officer.

A hearing officer shall be impartial. A hearing officer may voluntarily enter a recusal if the hearing officer’s impartiality might be called into question. A party may request the recusal of a hearing officer. The request must be in writing supported by a sworn affidavit based on facts as to which the affiant would be qualified to testify under evidentiary rules with respect to hearsay. The hearing officer shall decide the request based only on the written affidavit. If the hearing officer refuses the recusal, the hearing officer shall state reasons for the refusal. A party may contest the refusal by written petition to the Secretary.

 

(e)       Recusal of an investigator.

An investigator shall be impartial. An investigator may voluntarily enter a recusal if the investigator’s impartiality might be called into question. A party may request the recusal of an investigator. The request must be in writing supported by a sworn affidavit. The Deputy Secretary or a designee shall decide the request based only on the written affidavit.

 

Modified 1 CMC § 3806(c).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-465             Mediation of Complaints

 

(a)       Schedule.

The Administrative Hearing Office may refer each complaint for mediation. Mediations may be conducted by a hearing officer or by a mediator designated by the Administrative Hearing Office. Mediators need not be lawyers or have any formal certification. The Administrative Hearing Office shall schedule the mediation as promptly as practicable, normally within fifteen days of filing of the complaint, and notify the parties.

 

(b)       Notice.

The parties must be given at least three days notice before a mediation session. Notice of mediation may be issued to the complainant when the complaint is filed. Telephone notice of the mediation session is sufficient.

 

(c)       Proceedings.

Mediations will be conducted informally and confidentially without a taped or other record of the proceedings. No oral statement made at mediation is admissible in evidence. If the mediation is successful, the mediator shall reduce the agreement to writing and the agreement shall be signed by both parties and the mediator within three days after the mediation session.

 

(d)       Failure to attend.

If a complainant does not attend the mediation session after adequate notice, a hearing officer may dismiss the complaint without prejudice.

 

(e)       Failure to file in a timely manner.

If the complaint is not resolved at mediation, a hearing officer may then examine the complaint for timeliness. If the complaint is not timely filed, the hearing officer shall dismiss the complaint with prejudice. A party against whom a dismissal is entered may appeal to the Secretary pursuant to § 80-20.1-490.

 

(f)        Hearing date.

If the complaint is timely filed, at or immediately after the mediation, the hearing officer shall set a hearing date as promptly as practicable, usually within 90 days of completion of the mediation, and inform other parties of the date.

 

Modified 1 CMC § 3806(c), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-428. The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-470             Powers of the Hearing Officer

 

(a)       Investigation of complaint.

A hearing officer may refer a complaint to the Chief of the Enforcement Section for investigation, and the Chief or a designee may also initiate such investigation of the complaint as appears warranted by the allegations, other information provided by the complainant or available to the Department, and past complaints filed by the complainant or violations adjudicated against the respondent. Investigators may conduct interviews of the parties and others, request documents from the parties, inspect worksites, and undertake such other investigative actions as are warranted. Any non-privileged information gathered during an investigation shall be made available to the parties on request. Investigators may make such written report of the investigation as may be useful, but no written determination is required. At any time, an investigator may request from Administrative Hearing Office a continuance of the hearing for further investigation.

 

(b)       Attendance at orientation.

A hearing officer may require any foreign national worker who files a complaint to attend an orientation session in order to be informed of rights and responsibilities.

 

(c)       Authorization for temporary work pending a hearing.

A hearing officer may authorize a foreign national worker who attends a mediation session at which no agreement is reached to seek employment on a temporary basis pending a hearing in the case.

(1)       A foreign national worker to whom permission to seek temporary work is granted shall make a good faith effort to find work and shall appear in person at the Enforcement Section at least once in each calendar month to report on such efforts to find work. Failure to make a good faith effort to find work shall be grounds for denying a request for transfer. Failure to report or false or fraudulent reports shall be grounds to dismiss the pending case.

(2)       If a foreign national worker who has received permission to seek temporary work finds an employer, the Department shall issue a temporary work authorization for up to six months while the case is pending. A temporary work authorization may be renewed for an equal term and shall expire automatically ten days after the date of a hearing officer’s final order in the case or, in the event of a timely appeal ten days after the date of the Secretary’s order or, in the event of a timely appeal to a court ten days after the date of the court’s final order.

(3)       An employer who hires a foreign national worker under a temporary work authorization shall file with the Department, prior to the commencement of any work by the foreign national worker, a statement of employment terms on a standard form provided by the Department.

(4)       The financial obligations with respect to medical expenses and repatriation expenses remain with the last employer of record at the time the complaint was filed and are not shifted to the employer who hires the worker under a temporary work authorization. The financial obligations with respect to payment of wages and any employer-supplied housing or other benefits (other than medical expenses) are the responsibility of the employer who hires the worker under a temporary work authorization.

(5)       If employment under the temporary work authorization ends prior to the determination of the pending case, the foreign national worker shall report to the Enforcement Section within ten days for a renewal of the permission to seek temporary work.

 

(d)       Amendment of pleadings.

A hearing officer may allow appropriate amendments to pleadings when the determination of a controversy on the merits will be facilitated thereby and it is in the public interest.

 

(e)       Motions and requests.

An application for an order or any other request may be made by motion. The hearing officer may allow oral motions or require motions to be made in writing. The hearing officer may allow oral argument or written briefs in support of motions. Within ten days after a written motion is served, or within such other period as a hearing officer may fix, any party to the proceeding may file and serve a response in opposition to the motion. Within three days after an opposition brief is served, the moving party may file and serve a reply to the opposition.

 

(f)        Pre-hearing conferences.

A hearing officer may direct the parties to participate in a pre-hearing conference. At a pre-hearing conference, a hearing officer may discuss any matter that may facilitate resolution of the dispute, including settlement. Pre-hearing conferences may be conducted by telephone, in writing, or in person. A hearing officer may, but is not required to, reduce the results of a pre-hearing conference to an order. A statement on the record at the hearing may be used as an alternative.

 

(g)       Consolidation.

A hearing officer may consolidate two or more matters for hearing if the issues or evidence are the same or substantially similar. When consolidated hearings are held, a single record of the proceedings may be made, evidence introduced in one matter may be considered in consolidated matters, and the decision of the matters may be separate or joint, at the discretion of the hearing officer.

 

(h)       Bifurcation.

A hearing officer may bifurcate or separate one or more matters (such as status and eligibility for transfer separated from damages and other claims) for hearing on separate occasions. When separate hearings are held, evidence introduced at one session may be considered in another session, and the decision of the issues may be separate or joint, at the discretion of the hearing officer.

 

(i)        Discovery.

A hearing officer may, but is not required to, allow discovery. A party may request discovery regarding any matter, not privileged, that is relevant to the subject matter of the proceeding. If discovery is permitted, it is not ground for objection that the information sought will not be admissible at the hearing. Appropriate methods of discovery include depositions on oral examination or written questions, written interrogatories, production of documents or other evidence for inspection, and requests for admissions. Upon motion and good cause shown, a hearing officer may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. If a party fails to respond to discovery permitted by a hearing officer, an order may be entered by the hearing officer compelling response in accordance with the request.

 

(j)        Subpoenas.

Upon written application by a party or sua sponte, a hearing officer may issue a subpoena as authorized by law. A subpoena may compel attendance of non-party witnesses and production of relevant records and other tangible things in the possession or under the control of the non-party witness. Any person compelled to testify in response to a subpoena may be represented, counseled or advised by a lawyer or authorized agent. Within ten days of the receipt of a subpoena but no later than the date of the hearing, the person against whom the subpoena is directed may move to quash or limit the subpoena. Any such motion shall be answered within five days. An order with respect to a subpoena shall specify the date, if any for compliance. Upon the failure of any person to comply, a party adversely affected may apply to the Commonwealth Superior Court for enforcement.

 

(k)       Classified or sensitive material.

The hearing officer may implement procedures for dealing with classified or sensitive material, including limiting discovery or the introduction of evidence, redacting documents, using unclassified or non-sensitive summaries, and conducting in camera hearings.

 

Modified 1 CMC § 3806(g).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-432.

 

The Commission changed “complainst” to “complaint” in the title of subsection (a) to correct a manifest error. The Commission struck the duplicated word “six” in subsection (c)(2) pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-475             Service of Process

 

(a)       Service of a complaint, time requirements.

Service of the complaint on the respondent shall be made within five days of the filing and proof of service shall be filed with the Administrative Hearing Office within two days of service. If a complainant is represented by counsel, counsel shall complete service. If complainant is not represented by counsel, the Administrative Hearing Office shall complete service.

 

(b)       Service of a response, time requirements.

No response is required, however if a written response is made, it shall be served on the Administrative Heating Office and the complainant within ten calendar days after service of the complaint.

 

(c)       Service, address.

Employers and employees are responsible for keeping contact information in the Department’s records up to date and accurate. Service may be made at the address currently shown on the records of the Department unless a party knows of an actual current address.

 

(d)       Service, methods.

Service of any pleading, notice, or order may be made anywhere within the territorial limits of the Commonwealth. Service may be made by delivery to the party personally; or service may be made by United States mail first class postage prepaid; or service may be made by publication in a newspaper of general daily circulation on business days in the Commonwealth.

(1)       Personal service. Personal service is made by delivery of a copy of the pleading, notice, or order to the party personally or by leaving a copy of the pleading, notice or order at the party’s dwelling house or usual place of abode with some person of suitable age and discretion then residing there. If a party is represented by counsel, personal service may be made on counsel. If a party is represented by an agent authorized by appointment or by law to receive service of process, personal service may be made on the agent. Service may be made on any person designated by the complainant. Service is complete upon delivery.

(2)       Mail service. Mail service is made by delivery of a copy of the pleading, notice, or order to the United States Post Office, with first class postage prepaid, addressed to the complainant at the address provided on the complaint form or addressed to the respondent at the address provided on the approved employment contract unless a party has notified the Department of a, change of address in which case service shall be made to the address last provided by the party. If a party is represented by counsel, mail service may be made on counsel. If a party is represented by an agent authorized by appointment or by law to receive service of process, mail service may be made on the agent. Service is complete upon mailing. When documents are served by mail, five days is added to the prescribed period after service to exercise a right or take an action.

(3)       Publication service. Publication service is made by publishing a copy of the pleading, notice, or order in an English-language newspaper of general daily circulation on business days in the Commonwealth at least once in each of two weeks. The Department’s experience in using publication service demonstrates that it is far more effective in achieving receipt of notice and attendance at hearings than either attempts at personal or mail service due primarily to indeterminate addresses (without street names or numbers) in the Commonwealth and frequency of changes of address. Publication service is not required to provide any statement of grounds for any action to be taken at a hearing; the party noticed by publication may obtain any relevant documents or statement of grounds by inquiry at the Administrative Hearing Office. If the Department uses publication service with respect to any party who is a citizen of a foreign country and likely not to read English, service may, but is not required to, be supplemented by a one time publication in a newspaper of the party’s national language if such newspaper exists in the Commonwealth. Service is complete upon last publication. Reconsideration may be requested within a reasonable time in the event a party who does not speak English and did not see an English-language publication misses a hearing.

(4)       Alternative service. Notice may be given by telephone or electronic mail as the Administrative Hearing Office determines appropriate.

 

(e)       Service by the Department.

The Department may use publication service for any notice or any order without first attempting any personal or mail service. The Department normally will publish on the first Monday of a month, and normally will publish at least once in each of two successive weeks, but is not required to do so. In matters in which a Department representative has personally informed a foreign national worker and confirmed in writing or it has been ordered by a hearing officer that notices with respect to a particular matter may be posted under defined circumstances, the Department may use posting in a public place as service for any notice without first attempting any other service.

 

(f)        Notice to bonding companies.

The Department may, but is not required to, provide notice to a bonding company of potential claims, claims, or hearings in which employers or employees covered by a bond issued by the bonding company are or may be involved, unless the claim or hearing is conducted with respect to enforcement directly against the bonding company pursuant to § 80-20.1-485(l). Bonding companies control the terms of the bonds they write and may elect to include provisions that require employers, whose obligations are secured by the bond, to provide notice of any proceedings in which the bond may be affected in any way together with provisions that allow sufficient rights of inspection of an employer’s books and records to protect the bonding company’s interests in these regards. In addition, bonding companies are deemed to have notice of information provided on the Department’s website and in the Department’s published notices for any proceedings that may affect bonds they have issued. The Department has no obligation to make any bonding company a party to any hearing on a claim by an employee against an employer or by an employer against an employee however, upon motion to a hearing officer, a bonding company may intervene in and become a party to such hearings in order to protect its interests.

 

Modified 1 CMC § 3806(c), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-434. The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-480             Conduct of Hearings

 

(a)       Public proceedings.

Absent a finding by a hearing officer, hearings shall be open to the public. In unusual circumstances, a hearing officer may order a hearing or any part thereof closed if doing so would be in the best interests of the parties, a witness, the public, or other affected persons. Any order closing the hearing shall set forth the reasons for the decision. Any objections thereto shall be made a part of the record.

 

(b)       Conduct of hearings.

A hearing officer shall preside at each hearing conducted by the Administrative Hearing Office. A hearing officer shall administer oaths and may examine witnesses. A hearing officer may exercise, for the purpose of the hearing and in regulating the conduct of the proceeding, such powers vested in the Secretary as are necessary and appropriate. A hearing officer may conduct a hearing telephonically or by videoconference. At the conclusion of a heating, a hearing officer shall issue such findings, decisions, and orders as are necessary to resolve the matter.

 

(c)       Standards of conduct.

All persons appearing in proceedings before a hearing officer are expected to act with integrity and in an ethical manner. A hearing officer may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or acting in violation of these rules and regulations. A hearing officer shall state on the record the cause for suspending or barring any person from participation in a proceeding. Any person so suspended or barred may appeal to the Secretary, but no proceeding shall be delayed or suspended pending disposition of the appeal. A hearing officer shall suspend the proceeding for a reasonable time if it is necessary for a party to obtain another lawyer or representative. A hearing officer may apply the Commonwealth Disciplinary Rules and Procedures for guidance when issuing decisions regarding ethics.

 

(d)       Ex parte communications.

A hearing officer shall not consult any person or party on any issue of fact or question of law unless upon notice and opportunity for all parties to participate or learn the results of such communication. Communications for the sole purpose of scheduling hearings or considering requests for extensions of time are not considered ex parte communications so long as other parties are notified of any request and given an opportunity to respond. A person who makes or attempts to make an ex parte communication may be subject to sanction including exclusion from the proceedings and adverse ruling on the issue which is the subject of the prohibited communication.

 

(e)       Rules of evidence for hearings.

The Commonwealth rules of evidence are generally applicable to adjudicative proceedings before the Administrative Hearing Office. To the extent that these rules may be inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter are controlling. The parties may offer such evidence as is relevant to the dispute, and the hearing officer may request the production of evidence by a party. Strict adherence to the formal rules of evidence shall not be necessary, and the hearing officer shall make appropriate accommodations for pro se litigants. The hearing officer may make rulings on evidentiary issues and the introduction of evidence. The hearing officer may waive any rule upon a determination that no party will be prejudiced and that the ends of justice will be served.

 

(f)        Exhibits.

Parties shall exchange copies of exhibits at the earliest practicable time and, in any event, at the commencement of the hearing. Exhibits offered in evidence shall be numbered and marked for identification. One copy shall be furnished to each of the parties and to the hearing officer. If a record from any other proceeding is offered in evidence, a true copy shall be presented for the record in the form of an exhibit unless the hearing officer directs otherwise. The hearing officer shall direct the use of documents as to which only parts are relevant or bulky documents, so as to limit irrelevant material in the record. The authenticity of all documents submitted as proposed exhibits in advance of a hearing shall be presumed unless written objection is made prior to the hearing. Objection to authenticity shall not prevent the admission of a document, but a hearing officer may consider matters of authenticity when deciding the weight to give the evidence.

 

(g)       Judicial notice.

A hearing officer may take judicial notice of adjudicative facts that are not subject to reasonable dispute provided however that as to facts so noticed, the parties shall be given adequate opportunity to show the contrary.

 

(h)       Privilege.

Except as otherwise required by law, the privilege of a witness, person, government or political subdivision shall be governed by the principles of common law as they may be interpreted by the courts of the Commonwealth in light of reason and experience.

(i)        Continuances.

Continuances may be granted in cases of prior commitments for a court proceeding, a showing of undue hardship, or a showing of other good cause. Requests for continuance must be in writing and must be filed more than five days prior to the date set for the hearing. Oral orders with respect to continuances shall be confirmed in writing. The Administrative Hearing Office shall not stay any proceeding to allow the parties to proceed with their claims in a different forum except upon order of a court of competent jurisdiction.

 

(j)        Amendments to conform to the evidence.

When issues are not raised in a pleading, pre-hearing stipulation, or pre-hearing order and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be ordered by a hearing officer.

 

(k)       Record.

All hearings shall be recorded. Parties may provide a stenographic reporter at their own expense. The media on which recordings of proceedings are made shall be maintained by the hearing office until the expiration of all appeals, at which time the media may be destroyed.

 

(l)        Default.

Except for good cause shown, failure of a party to appear at a hearing after timely being served notice to appear shall be deemed to constitute a waiver of any right to pursue or contest the allegations in the complaint. If a party defaults, the hearing officer may enter a final order containing such findings and conclusions as may be appropriate.

 

(m)      Closing the record.

When a hearing is conducted, the record shall be closed at the conclusion of the hearing unless the hearing officer directs otherwise. If any party waives a hearing, the record shall be closed upon receipt of submissions of the parties or at the time deadlines set by the hearing officer for receipt of such submissions. Unless the hearing officer directs otherwise, no document or other evidentiary matter may be submitted after the record is closed.

 

Modified 1 CMC § 3806(e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-436.

 

§ 80-20.1-485             Orders and Enforcement

 

(a)       Issuance of orders.

The hearing officer shall, upon concluding a hearing,

issue any necessary findings, decisions, and orders as soon as practicable. Issuance of findings, decisions, and orders shall be pursuant to 1 CMC § 9110, but shall not be

judicially reviewable until final.

 

(b)       Dismissal.

A complaint may be dismissed upon its abandonment or settlement by the party or parties who filed it. A party shall be deemed to have abandoned a request for hearing if neither the party nor the party’s representative appears at the time and place fixed for the hearing unless good cause is shown. A dismissal may be entered against any party failing, without good cause, to appear at a hearing. A dismissal may be entered against any person who has left the CNMI and has been absent for six months or more without having notified the Administrative Hearing Office of their contact information. A party against whom a dismissal is entered may appeal to the Secretary pursuant to § 80-20.1-490.

 

(c)       Authority.

The hearing officer is authorized to:

(1)       In a job preference case, award actual and liquidated damages in an amount up to six months’ wages for the job for which a citizen, CNMI permanent resident, or U.S. permanent resident applied.

(2)       Award unpaid wages (which includes prospective contract damages, if any) or overtime compensation, amounts unlawfully deducted from wages or unlawfully required by an employer to be paid by a foreign national worker, damages for unlawfully termination of an approved employment contract, or damages, when appropriate, for conduct of the employer that is in violation of Commonwealth or federal law;

(3)       Assess liquidated damages of up to six months wages if actual damages are uncertain or cannot be ascertained under a satisfactory or known rule in cases in which the employer’s conduct is found to have been retaliatory;

(4)       Cancel or modify an umbrella permit or identification card or an approved employment contract or require an employer thereafter to pay foreign national workers only by check or direct deposit in a United States bank payable in United States currency (no cash payments) in cases where payment records have been negligently or inappropriately kept;

(5)       Order temporary or permanent debarment of an employer or order an employer to attend one or more orientation sessions under Section 80-50.2-115* for education as to rights and responsibilities under Commonwealth law;

(6)       Disqualify a foreign national worker, temporarily or permanently, from employment in the Commonwealth;

(7)       Levy a fine not to exceed $2,000 for each violation of any provision of the Commonwealth Employment Act of 2007, as amended;

(8)       Issue declaratory or injunctive relief as appropriate;

(9)       Amend or extend any permission previously granted by the Commonwealth;

(10)     Award attorneys’ fees when appropriate in addition to any other remedy; provided however that attorneys’ fees shall not be recoverable against the Commonwealth;

(11)     Modify an umbrella permit. An umbrella permit may be continued in effect on any of the bases upon which it could have been granted or on any of the bases on which an umbrella permit described in § 80-20.1-315(b) could have been granted. An umbrella permit may be modified to condition the continuation in effect of an umbrella permit as appropriate to secure compliance with Commonwealth law, regulations, orders of a hearing officer, or terms of the permit;

(12)     Revoke an umbrella permit for violation of Commonwealth law, regulations, orders of a hearing officer, or terms of the permit;

(13)     Impose such other sanction, order or relief as may reasonably give effect to the requirements of Commonwealth law; and

(14)     Use the inherent powers of a hearing officer and powers granted by the Administrative Procedures Act to further the interests of justice and fairness in proceedings.

 

(d)       Transfer relief.

Only a hearing officer may grant a transfer. Nothing in the Commonwealth Employment Act of 2007, as amended, or in this subchapter creates any right to a transfer. A hearing officer may grant a transfer in connection with the adjudication of a claim if other remedies are insufficient to provide a foreign national worker the benefit of the bargain made when entering the approved employment contract. If a hearing officer grants a transfer, a foreign national worker may become employed under a new approved employment contract without first exiting the Commonwealth.

(1)       The grounds for granting transfer relief in connection with the adjudication of a claim include:

(i)        An unlawful termination of an approved employment contract by an employer;

(ii)       The voiding of an approved employment contract or debarment of an employer for a violation of the regulations in this subchapter or the Commonwealth Employment Act of 2007, as amended;

(iii)      A reduction in force pursuant to Section 4937 of the Commonwealth Employment Act of 2007, as amended;

(iv)      The abandonment of the worker during the term of an approved employment contract, but prior to ninety days before the termination date of the contract, by an employer who failed to pay bi-weekly wages on two successive occasions, closed a business, declared bankruptcy, or exited the Commonwealth evidencing an intent not to return; or,

(v)       Upon a finding by the hearing officer that the foreign national worker has prevailed under an equivalent theory of law or equity and that transfer relief is appropriate.

(2)       A transfer may be granted in connection with the adjudication of a claim only to a foreign national worker who has complied with the provisions of the approved employment contract to the extent practicable under the circumstances, and for whom transfer relief is required in order to assure receipt of the benefit of the bargain under the contract that is the subject of the action. A settlement may include transfer relief, if appropriate, and subject to approval by a hearing officer.

(3)       The order granting a transfer shall specify the time period within which the foreign national worker must secure new employment, which time period shall not be longer than thirty days from the date of the order unless the hearing officer makes specific findings of circumstances justifying a longer period.

 

(e)       Whistleblower relief.

In order to promote the public interest in securing compliance with Commonwealth law, a foreign national worker who provides the Department with information on the basis of which a compliance agency case is brought may be granted a transfer by a hearing officer even if not otherwise qualified.

 

(f)        Repatriation.

The hearing officer may assess costs for repatriation of a foreign national worker.

 

(g)       Order.

As soon as practicable, and generally within fifteen days after the close of the record, the hearing officer shall complete and issue or enter any necessary decisions and orders. A decision of a hearing officer shall include findings of fact and conclusions of law, with reasons therefore, as appropriate. A decision shall be based on the whole record, supported by reliable, probative evidence, and in accordance with the statutes and rules and regulations conferring jurisdiction. An order may be made with respect to amounts to be paid, actions to be taken, or other relief to be accorded. An order shall include a schedule of payment for all awards, if any, to the prevailing party, and information with respect to any relevant bond.

 

(h)       Date of an order.

The hearing officer shall sign and enter the date on which an order was signed. The date on which the order was signed is the date the order was issued or entered.

 

(i)        Motion for reconsideration.

A motion for reconsideration may be granted for mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence which, by due diligence, could not have been discovered in time to move into evidence at the hearing; fraud, misrepresentation, or misconduct of an adverse party; the judgment is void, has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed; or other reason justifying relief. A party may file a motion for reconsideration within fifteen days after service of an order. A response may be filed no later than five days after the filing of the motion. After a decision on a motion for reconsideration is signed, no further motions or filings may be made with the Administrative Hearing Office other than a notice of appeal.

 

(j)        Correction of errors.

A hearing officer may sua sponte correct an error prior to the time the record is certified for appeal.

 

(k)       Administrative enforcement by the Department.

If a party fails to comply with an administrative order, the Chief of the Enforcement Section may, but is not required to, bring an administrative enforcement proceeding against the party or against a bonding company that issued a bond securing the party’s obligations. Administrative enforcement actions by the Department shall be initiated by a complaint filed with the Administrative Hearing Office by the Chief of the Enforcement Section, and notice shall be served and hearings held as provided in this subchapter.

 

(l)        Court enforcement by the Department.

If a party fails to comply with an administrative order, the Department may, but is not required to, seek enforcement of the administrative order in Commonwealth Superior Court.

 

(m)      Choice of venue.

A person who has been awarded damages or other relief by an administrative order issued by a hearing officer may bring a direct action in the Commonwealth Superior Court to enforce the administrative order and collect the award by filing a complaint seeking enforcement of that order. See the Commonwealth Employment Act of 2007, as amended, §4950(a).

 

* So in original. This citation refers to a section that does not exist in the regulation.

 

Modified 1 CMC § 3806(c), (d), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former section § 80-20.1-438, entitled “Orders and Relief.” The Commission corrected the phrase “attorneys fees” in subsection (c)(11) to “attorneys’ fees” pursuant to 1 CMC § 3806(g). The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

§ 80-20.1-490             Appeals

 

(a)       Commencing an appeal to the Secretary.

An appeal is commenced by filing a notice of appeal on the standard form provided by the Department and payment of the fee required in Section 80-60.8* of these regulations.

 

(b)       Procedural requirements.

Service of process with respect to appeals shall be as provided in § 80-20.1-470 of these regulations. Alternative forms of notice by telephone or electronic mail may be used. The party who seeks relief from the Secretary is the appellant. The party against whom relief is sought is the appellee. The Secretary may entertain an amicus brief with ten days notice to the parties.

 

(c)       Record before the Secretary.

The record before the Secretary consists of the complaint, pleadings filed, exhibits, and order of the hearing officer. A party may request that the record before the Secretary be supplemented by a written transcript of the proceedings before the hearing officer and may request additional time to prepare and certify it.

 

(d)       Rules of practice on appeals before the Secretary.

When the Secretary is exercising jurisdiction over appeals from final orders of the Administrative Hearing Office, the Secretary shall have all the powers and responsibilities of a hearing officer. No hearing or oral argument on an appeal is required. The Secretary shall notify the parties of the time and place for any hearing on the appeal and shall not schedule the hearing with less than ten days notice or change a hearing date with less than ten days notice.

 

(e)       Administrative review by the Secretary.

In a review on appeal, the Secretary may restrict review to the existing record, supplement the record with new evidence, hear oral argument, or hear the matter de novo pursuant to 1 CMC §§ 9109 and 9110. Upon completion of review, the Secretary shall affirm, reverse, or modify the findings, decision, or order of the hearing officer. The Secretary may remand under appropriate instructions all or part of the matter to the Administrative Hearing Office for further proceedings. The Secretary’s decision shall constitute final agency action for purposes of judicial review.

 

(f)        Time for issuance of order.

The time within which the Secretary must confirm or modify a finding, decision or order of a hearing officer that has been appealed to the Secretary begins to run on the date on which a party certifies to the Secretary that the record and any necessary briefing is complete.

 

(g)       Judicial review.

Judicial review of a final action of the Secretary is authorized after exhaustion of all administrative remedies. Appeal from a final action by the Secretary shall be directly to the Commonwealth Superior Court. Except as otherwise required by a rule of the Commonwealth Superior Court, the pleading initiating judicial review shall be a Petition for Judicial Review. The Petition shall identify the order of the Secretary being appealed and the order of the Administrative Hearing Office that was appealed to the Secretary and shall attach copies of both. The Petition shall set out each ground for appeal in summary form in a separate numbered paragraph, and shall state that the requirements of the Commonwealth Employment Act with respect to appeals of final orders of the Secretary have been met.

 

* So in original. This citation refers to a section that did not exist in the regulation.

 

Modified 1 CMC § 3806(c), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The Commission included the above history of former sections § 80-20.1-440 and 442, entitled “Appeal to the Secretary and Judicial Review, respectively.” The Commission substituted section numbers pursuant to 1 CMC § 3806(d).

 

Part 500 -       Records, Reports, and Registration

 

Subpart A -     Records

 

§ 80-20.1-501             Required Records

 

An employer of a foreign national worker shall keep for at least two years, and present immediately upon written request by the Secretary or a designee, the following information:

 

(a)       Personnel records for each foreign national worker including the name, current residence address in the Commonwealth, age, domicile, citizenship, point of hire, and approved employment contract termination date;

 

(b)       Payroll records for each foreign national worker including the O*NET job classification; wage rate or salary, number of hours worked each week, gross compensation, itemized deductions, and evidence of net payments made and received biweekly;

 

(c)       Receipts for cash payments, cancelled checks or deposit records of payment of wages and overtime.

 

(d)       Documentation for each foreign national worker including approved employment contract, police clearance, health certificate, and tax payment records;

 

(e)       The employer’s business license and security contract information with respect to each foreign national worker; and

 

(f)        The number and type of employment-related accidents or illnesses involving workers and adequate identification of each worker involved.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from § 80-20.1-530 and changed it by adding a new subsection (c) and re-designating the remaining subsections. The Commission corrected the spelling of “O*NET” in subsection (b) pursuant to 1 CMC § 3806(g).

 

Subpart B -     Reporting

 

§ 80-20.1-505             Census of Employment

 

(a)       Census of employment.

The effective and fair administration of governmental efforts to secure full employment for citizens, CNMI permanent residents and U.S. permanent residents in the Commonwealth requires accurate and up-to-date information about employment in the Commonwealth. The Commonwealth Employment Act of 2007, as amended, requires the Department to collect and report such information.

 

(b)       Each business employer shall report quarterly, as of the last day of the calendar quarter and within the time limits for filing the business gross receipts tax return, the number and classification of employees for whom wages were paid during the quarter.

 

(c)       Each non-business employer shall report annually, as of the last day of the calendar year and no later than the first business day in February, the number and classification of employees for whom wages were paid during the year.

 

(d)       Census reports shall be made on the form provided by the Department and filed according to the instructions on the form.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-510             Workforce Plan

 

(a)       A workforce plan has as its objective an increase in the percentage of citizens, U.S. permanent residents, and CNMI permanent residents and the immediate relatives of citizens, U.S. permanent residents and CNMI permanent residents in the workforce of the employer.

 

(b)       The workforce plan.

A workforce plan shall identify specific positions currently occupied by nonimmigrant aliens. The plan shall include a timetable for accomplishing the replacement of nonimmigrant aliens with qualified citizens, CNMI permanent residents, and U.S. permanent residents until the workforce participation objective is met.

 

(c)       Employers covered.

Every employer who employs nonimmigrant aliens, unless exempted, is required to have on file with the Department a written, current plan. A workforce plan is current if it has been updated and filed within the past 12 months.

 

(d)       Exemptions.

(1)       Compliance with the workforce participation requirement. An employer that has submitted to the Department adequate documentation with respect to compliance for the immediately preceding two years with the workforce participation requirement is exempt from the requirement to file a workforce plan.

(2)       Exemption from the workforce participation requirement. An employer that is exempt from the workforce participation requirement is exempt from the requirement to file a workforce plan. In order to be eligible for the exemption, each employer must file with the Department a Claim of Exemption on the standard form provided by the Department. It is the responsibility of the employer to ensure that a Claim of Exemption continues to be an accurate representation to the Department.

(3)       Loss of exemption. An employer against whom two or more judgments in labor cases or consolidated agency cases are entered in Department proceedings within any two year period automatically loses any applicable exemption and a plan must be filed with the Department within 30 days of the entry of the second judgment.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-220(p). The Commission corrected the spelling of “workforce” in subsection (a) pursuant to 1 CMC § 3806(g).

 

Subpart C -     Registration of Aliens

 

§ 80-20.1-515             General

 

The registration of aliens present in the Commonwealth is permitted under both federal and Commonwealth law.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-520             Federal Registration

 

Federal law provides for registration of aliens as follows:

 

Section 702(a)            [Section 6(e)(3)] of Pub. L. No. 110-229, the Consolidated Natural Resources Act, provides:

REGISTRATION. The Secretary of Homeland Security may require any alien present in the Commonwealth on or after the transition period effective date to register with the Secretary in such a manner, and according to such schedule, as he may in his discretion require. Paragraph (1)  [prohibition on removal] and Paragraph (2)  [employment authorization] of this subsection shall not apply to any alien who fails to comply with such registration requirement.

 

Section 262 of the Immigration and Nationality Act, 8 U.S.C. 1302 provides:

Registration of aliens.

(a)       It shall be the duty of every alien now or hereafter in the United States, who

(1)       is fourteen years of age or older,

(2)       has not been registered and fingerprinted under section 1201(b)     of this title or section 30 or 31 of the Alien Registration Act, 1940, and

(3)       remains in the United States for thirty days or longer, to apply for registration and to be finger printed before the expiration of such thirty days.

(b)       It shall be the duty of every parent or legal guardian of any alien now or hereafter in the United States, who

(1)       is less than fourteen years of age,

(2)       has not been registered under section 1201(b)          of this title or section 30 or 31 of the Alien Registration Act, 1940, and

(3)       remains in the United States for thirty days or longer, to apply for the registration of such alien before the expiration of such thirty days. Whenever any alien attains his fourteenth birthday in the United States he shall, within thirty days thereafter, apply in person for registration and to be fingerprinted.

(c)       The Attorney General may, in his discretion and on the basis of reciprocity pursuant to such regulations as he may prescribe, waive the requirement of fingerprinting specified in subsections (a)       and (b) of this section in the case of any nonimmigrant.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission did not modify the paragraph and subsection designations in this section to allow the federal law designations to remain the same. The Commission corrected the citation to Pub. L. No. 110-229 pursuant to 1 CMC § 3806(g).

 

§ 80-20.1-525             Commonwealth Registration

 

Commonwealth law has provided for the annual registration of aliens since 1983.

 

Title 3, Section 5001 provides:

Registration of aliens.

(a)       Every alien who remains in the Commonwealth longer than 90 days shall by regulation be required to be registered. Registration shall be renewed annually. The parents or legal guardians of aliens under the age of 18 are responsible for such child’s registration.

(b)       Registration shall be conducted by the Department for all classes of aliens. Registration information may be taken on oath or by declaration. Such registration information as the Secretary may require is confidential and may be made available only on request of law enforcement authorities in connection with criminal or juvenile delinquency investigations.

(c)       Registered aliens will be issued an identification card, which will contain the name of the alien, the LIDS number, such identifying information as the Secretary may require, and the expiration date of the card.

(d)       Registered aliens 18 years old or older shall keep their identification card in their personal possession or control at all times.

(e)       Any alien who knowingly fails to comply with this section shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than 90 days, or fine of not more than $500 or both.

(f)        An alien, for purposes of this section, is any person who is not a citizen, national, or permanent resident of the United States, or a CNMI permanent resident as provided by Commonwealth law prior to April 23,1981.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Commission Comment: The Commission did not modify the paragraph and subsection designations in this section to allow the CNMI law designations to remain the same.

 

§ 80-20.1-530             No Duplicate Registration

 

To the extent that the federal government registers all aliens present in the Commonwealth and provides registration information to the Commonwealth, the Commonwealth will not duplicate the registration requirement.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Part 600 -       Other Provisions

 

Subpart A -     Regulations

 

§ 80-20.1-601             Regulations

 

In order to implement the legislative oversight requirement, amendments to this subchapter shall be transmitted to the presiding officers of the Legislature for a thirty day period of consideration, prior to, concurrently with, or subsequent to publication for comment. If all or any part of the regulations is rejected by a joint resolution within the thirty day period, the regulations shall be amended accordingly before going into effect. No further period for public comment is required after action by the Legislature.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from former section § 80-20.1-501 without changing the content.              

 

Subpart B -     Limitations

 

§ 80-20.1-605             Computation of Time Periods

 

In computing any period of time under the rules in this subchapter, or in a decision or order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period unless it is a Saturday, Sunday, or non-work day observed by the Commonwealth government, in which case the time period includes the next business day. When a prescribed period of time is seven days or less, Saturdays, Sundays, and non-work days shall be excluded from the computation.

 

Modified 1 CMC § 3806(d), (e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from former section § 80-20.1-426(h) without changing the content.

 

§ 80-20.1-610             Time Limit for Filing Complaints

 

(a)       General Time Limit.

No complaint may be filed more than six months after the date of the last-occurring event that is the subject of the complaint, except in cases where the actionable conduct was not discoverable upon the last-occurring event. In such instance, no complaint may be filed more than six months after the date a complainant of reasonable diligence could have discovered the actionable conduct.

 

(b)       Time limit for filing after termination.

In any event, an individual must file a complaint within thirty days of the termination of an approved employment contract. However, the Department may file an action against an employer on behalf of individual workers after the 30-day period for an individual complaint has expired. The six month period within which the Department may file a complaint does not commence until after an investigation has been commenced.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

§ 80-20.1-615             Motions for Reconsideration

 

A party may file a motion for reconsideration within fifteen days after service of an order.

 

Modified 1 CMC § 3806(e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-438(k).

 

§ 80-20.1-620             Time for Filing Appeals

 

(a)       Time for filing administrative appeals.

Appeals of an administrative denial must be filed with the Administrative Hearing Office within fifteen days of the date of the denial unless good cause is shown. In no event may an administrative appeal be taken more than six months from the date of the denial.

 

(b)       Time for filing appeals to the Secretary.

A notice of appeal to the Secretary must be filed within fifteen days of issuance of the order by a hearing officer.

 

(c)       Time for filing appeals to the Court.

Appeal from a final action by the Secretary must be filed with the Commonwealth Superior Court within thirty days of the final action by the Secretary.

 

Modified 1 CMC § 3806(e).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).

 

Subpart C -     Electronic Filing and Access

 

§ 80-20.1-625             Electronic Forms

 

The regulations in this subchapter are designed to foster the use of Internet access so that forms may be filed via the Department’s website. To that end, most submissions to the Department are standard forms that are available for downloading from the Department’s website, www.marianaslabor.net.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010);

Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-550(a).

 

§ 80-20.1-630             Online Access

 

The Department provides access via the Department’s website to revised statutes and regulations, announcements, notices, opinions and orders, and public data from the Department.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-550(b).

 

Subpart D -     Fees

 

§ 80-20.1-635             Fees

 

The following fees shall be collected by the Department. All fees are nonrefundable and nontransferable unless otherwise provided in this subchapter.

 

(a)

Posting a job vacancy announcement

No fee

(b)

Registration to transfer

No fee

(c)

Application for an approved contract (initial, transfer, renewal)

$300.00 unless a federal fee has been paid, in which case no fee

(d)

Application for an approved contract non-business employer

$250.00 unless a federal fee has been paid, in which case no fee

(e)

Attendance at orientation

No fee

(f)

Request for contract amendment or change

$25.00

(g)

Request for certificate of good standing

$100.00

(h)

Filing of workforce plan

No fee

(i)

Replacement or duplicate permit

$50.00

(j)

Penalty fee for untimely renewal (limit 60 days)

$5.00/day

(k)

Processing a temporary work authorization (6 months)

$150.00

(l)

Renewal of temporary work authorization (per month)

$25.00

(m)

Mediation of labor disputes

No fee

(n)

Filing a complaint with the Hearing Office

$20.00/person

(o)

Filing an appeal to the Hearing Office

$25.00/person

(p)

Filing an appeal to the Secretary (per person, except in agency cases)

$40.00

(q)

Transcript of labor hearing (tape only; tape provided by requester)

$75.00/tape

(r)

Expedited processing (in addition to fee)

$150.00

(s)

Miscellaneous certifications

$25.00

(t)

Request for extension of transfer

$50.00

(u)

Annual registration

$25.00

(v)

Penalty fee if check or credit card payments do not clear

$35.00

(w)

Specialty data request

Less than one hour required for

            Individual’s own records

            Employer’s own records

Less than one hour required, others

More than one hour required (as available)

 

 

$25.00

$25.00

$95.00

Cost to locate, assemble, and copy

(x)

Contract extensions (up to six months)

$35.00/month

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 31 Com. Reg. 29636 (June 22, 2009); Amdts Proposed 31 Com. Reg. 29557 (May 20, 2009); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-535.

 

Subpart E -     Severability and Effective Date

 

§ 80-20.1-640             Severability

 

If any provision of the regulations in this subchapter or the application of such regulations to any person or circumstance shall be held invalid by a court of competent jurisdiction, the remainder of such regulations or the application of such regulations to persons or circumstances other than those as to which it was held invalid shall not be affected thereby.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments renumbered this section from former section § 80-20.1-601 without changing the content.

 

§ 80-20.1-645             Effective Date

 

The regulations in this subchapter are effective on June 1, 2010 and shall not apply retroactively to applications filed or proceedings in the Administrative Hearing Office that were pending before that date.

 

Modified 1 CMC § 3806(d).

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010); Amdts Adopted 30 Com. Reg. 28891 (Oct. 25, 2008); Amdts Proposed 30 Com. Reg. 28632 (Sept. 25, 2008); Adopted 30 Com. Reg. 28027 (Jan. 22, 2008); Proposed 29 Com. Reg. 27498 (Dec. 18, 2007); Proposed 29 Com. Reg. 27213 (Nov. 19, 2007).

 

Commission Comment: The 2010 amendments changed this section and renumbered it from former section § 80-20.1-605.


 

Appendix A

Former Immigration Categories

 

The following immigration categories of persons entitled to work in the Commonwealth were included in the Immigration Regulations effective in the Commonwealth on November 27, 2009. The numbering is from those regulations. The references to “Director” are to the former CNMI Director of Immigration.

 

§ 5-40.3-240(b)          Government Employment Entry Permit

 

An alien hired as a Commonwealth government employee in accordance with 3 CMC § 4532 or § 4972, an alien hired as a Federal government employee, or an alien performing services under a contract (either directly or indirectly) with the Commonwealth or Federal governments, who meets other applicable requirements to enter the Commonwealth as set out in these regulations, may enter and remain in the Commonwealth for one (1) year. The application must include a copy of the contract which has been approved by the government agency. This class of entry permit is renewable. Holders of this class of entry permit may engage in any work in the Commonwealth that is covered by the government employment or contract.

 

§ 5-40.3-240(d)          Immediate Relative of Citizen. U.S. National or CNMI Permanent Resident Entry Permit

 

Immediate relatives of persons who are citizens, U.S. nationals, or CNMI permanent residents may enter and remain in the Commonwealth for one year so long as the immediate relative status is in effect, the citizen, U.S. national, or permanent resident meets the qualifications as a sponsor of the alien, and all other qualifications are met. The application for an Immediate Relative Entry Permit shall be filed not earlier than 60 days following the marriage and during the period in which the alien has a lawful immigration status in the Commonwealth. In the event a marriage is terminated by judicial decree, the alien has a grace period of 60 days from the date of the final decree either to change to a different lawful immigration status or to depart the Commonwealth. In the event a marriage is terminated by the death of the U.S. citizen spouse, a widow or widower may apply at any time for a two-year permit in order to facilitate change of status to U.S. permanent resident (green card holder) or other status. Upon application and such documentation as the Director may require, the Director may waive restrictions applicable to an immediate relative who is a dependent child or dependent adult who is physically or mentally challenged and whose care and support is provided by the sponsoring U.S. citizen or other person qualified under this section.

 

§ 5-40.3-240(e)           Immediate Relative of Alien Entry Permit

 

An immediate relative of an alien, or a common-law marriage spouse of an alien whose family unit includes one or more natural, adopted, or step children under the age of 16 years, may enter and remain in the Commonwealth under an Entry Permit for the same term as the sponsoring alien’s Entry Permit if the immediate relative or common-law marriage spouse satisfies the applicable requirements under these regulations, the sponsoring alien meets the requirements to be a sponsor, the sponsoring alien posts a cash bond with the Director in the amount of twice the cost of return travel to the point of origin at the time of application, and the immediate relative or common-law marriage spouse is not an excludable alien. This class of entry permit has the following sub-classifications:

EB: Immediate relative of a government employee

EG: Immediate relative of a foreign investor

EK: Immediate relative of a foreign national worker

EL: Immediate relative of a minister or religious leader

EM: Immediate relative of a missionary

EN: Immediate relative of a long-term business permit holder

EO: Immediate relative of a retiree investor

ET: Immediate relative of the holder of a passport issued by a Freely Associated State

Upon application, the Director may waive restrictions applicable to an immediate relative who is a dependent child who is physically or mentally challenged and whose care and support is provided by the sponsoring alien.

 

(g)       Foreign Investor Entry Permit

 

An alien who presents a certificate of foreign investment issued by the Department of Commerce and meets the other applicable immigration requirements in these regulations may be issued a Foreign Investor Entry Permit. An alien who has been issued a certificate of foreign investment by the Department of Commerce may enter and remain in the Commonwealth as long as the Department’s certificate remains in effect. A holder of this class of entry permit may not work or be employed in the Commonwealth except within the business or activity that constitutes the foreign investment and that has been approved by the Department of Commerce.

 

(k)       Private Sector Employment Entry Permit

 

An alien who presents a certificate of eligibility to work in the private sector in the Commonwealth issued by the Department of Labor and who meets the other applicable immigration requirements in these regulations may be issued a Foreign Worker Entry Permit. An alien who has been issued a certificate of eligibility by the Department of Labor may enter and remain in the Commonwealth as long as the Department’s certificate remains in effect and the person is qualified to work and employed in the Commonwealth. Persons entering for religious occupations pursuant to 3 CMC § 4927 after October 1, 2008 shall be included in this class.

 

§ 5-40.3-240(h)          Foreign Student Entry Permit

 

An alien who presents a certificate of admission to an educational institution or school established by Commonwealth law or licensed to operate by the Department of Commerce and who meets the other applicable immigration requirements in these regulations may be issued a Foreign Student Entry Permit. An alien who is a holder of this class of entry permit may enter and remain in the Commonwealth as long as the alien is qualified to study and is a full-time student in the Commonwealth, and the educational institution or school remains qualified under Commonwealth law or a license issued by the Department of Commerce. This class of entry permit does not include enrollees or students in preschool programs. A holder of this class of entry permit may not work or be employed in the Commonwealth except for participation in an on-campus work-study program intended to defray the cost of tuition or living expenses; work for a licensed business not more than 10 hours a week in the student's field of study; or participation in paid activities constituting academic research or training in the student’s field of study.

 

(a) § 5-40.3-240(1)     Minister of Religion Entry Permit

 

An alien who has a vocation of minister of religion or its equivalent, and seeks entry to the Commonwealth to be employed at a bona fide non-profit religious undertaking in the Commonwealth that has no current minister or its equivalent for the purposes of carrying on the vocation of minister of religion or its equivalent, may be issued a Minister of Religion Entry Permit. For purposes of this section, a “bona fide non-profit religious undertaking” means a religious organization legally established or incorporated in the Commonwealth that is exempt from Commonwealth taxation or U.S. taxation as an organization described in 26 U.S.C. § 501(c)(3). For purposes of this section, a “vocation of minister or its equivalent” means that the person has been an active, registered, or recognized member of the religious organization for the two continuous years immediately preceding entry to the Commonwealth and seeks entry for the primary purpose of serving as a minister, priest, cleric, preacher, rector, parson, reverend, nun, monk, or equivalent position that directs the religious affairs of a bona fide non-profit religious undertaking that currently has no minister or its equivalent. An immediate relative of the holder of this class of entry permit may be issued an immediate relative entry permit for the same duration as the holder’s permit, provided that such person is not an excludable alien.

 

§ 5-40.3-240(m)         Missionary Entry Permit

 

Prior to October 1, 2008, an alien who is a bona fide missionary who is in the Commonwealth solely for the purpose of engaging in religious doctrine teaching and not receiving compensation at the level of a living standard of monetary compensation, may be issued a Missionary Entry Permit. The missionary must be petitioned for by a bonafide religious organization showing that the missionary’s services are needed by a denomination having a bonafide organization in the Commonwealth. Missionary work is limited to teaching religious doctrine in a church, classroom, or in a home visit setting. After October 1, 2008, the entry class of missionary ceases to exist, provided however that persons holding multiyear permits issued prior to October 1, 2008 may register each year within this class until the term of the original permit expires.

 

§ 5-40.3-240(n)          Long-term Business Entry Permit

 

The Long-Term Business Entry Permit allows an alien to remain in the Commonwealth for up to two (2) years. The applicant must present a certificate of eligibility for a long-term business entry permit issued by the Department of Commerce. A holder of this class of entry permit may engage in any lawful business or commercial activity in the Commonwealth as permitted by the Department of Commerce. A holder of this class of entry permit may not work or be employed in the Commonwealth except to be employed in the business for which the Department of Commerce approved the entry permit.

 

§ 5-40.3-240(o)          Retiree Investor Entry Permit

 

An alien who is at least 55 years of age on the date of arrival in the Commonwealth, who presents a certificate of foreign retiree investment issued by the Department of Commerce, and who meets the other applicable immigration requirements in these regulations, may be issued a Retiree Investor Entry Permit. The holder of a Retiree Investor Entry Permit may be employed for less than 20 hours a week in the Commonwealth.

 

§ 5-40.3-240(p)          Temporary Work Permit

 

At the discretion of the Attorney General, an alien who is a victim or witness in a civil or criminal proceeding or party in a civil or criminal matter pending before a Commonwealth court or agency, or a person who has applied for refugee protection pursuant to § 5-40.4-100 of these regulations, may be issued a Temporary Work Permit for up to two years while the relevant matter is pending. This work permit is temporary and does not extend beyond the time required for the relevant matter and reasonable arrangements thereafter as determined by the Attorney General unless the holder of the permit becomes employed as approved by the Director of Labor. . This class of entry permit may be modified or revoked after the relevant matter is no longer pending. A holder of this class of entry permit may be employed in the Commonwealth.

 

§ 5-40.3-240(t)           Holders of passports issued by a Freely Associated State

 

An alien who is the holder of a passport issued by a Freely Associated State may

enter the Commonwealth upon presentation of a valid passport. No entry permit

is required.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).


 

Appendix B

Umbrella Permit Conditions

 

Every umbrella permit was issued pursuant to conditions stated on the face of the permit. Those conditions are reproduced here for convenience of reference.

 

(a) General conditions. All umbrella permits contain these general conditions: “Agreement and acknowledgment: I, the person to whom this permit is issued as named and identified above, agree to the permit conditions set out above and acknowledge as a condition of the issuance of this permit allowing my residence and employment in the Commonwealth that every aspect of the issuance, modification, or termination of this permit is governed by Commonwealth law and is administered by the Department of Labor. I agree to abide by the applicable labor regulations. I understand that the adjudication of any disputes with respect to this permit is the responsibility, in the first instance, of the Commonwealth Department of Labor and that I have a right of appeal to the Commonwealth Superior Court as defined by Commonwealth law and regulations.”

 

(b) Specific conditions. All umbrella permits contain specific conditions.

 

(i) 240K permit:

Conditions: This permit authorizes the holder to be employed in accordance with an approved employment contract as provided in Department of Labor regulations and, as necessary, to seek to be employed, and to transfer for new employment in the private sector during the two-year term of the permit. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing the employment of aliens as of the date of issue. Revocations will be published on the DoL website: www.marianaslabor.net. This permit is without effect after November 27, 2011.

 

Extension of employment: this permit may be revoked at the termination of an employment contract unless, on or before the expiration date of an approved employment contract (the next filing date shown above), the employer elects to extend the employment of the holder of this permit. The employer must submit the proposed extension contract and pay the applicable fee. This permit does not require employment in a particular employment category or on a particular island.

 

Change of employment. This permit may be revoked under circumstances when the holder changes employment unless the holder registers with the Division of Employment Services and files and Employer Intent Form no later than thirty days after termination of an existing employment contract. Upon the filing of an Employer Intent Form, the Department will follow its usual processes under these regulations.

 

Seeking employment: This permit may be revoked under circumstances when the holder is not employed and is seeking employment unless the holder makes diligent efforts to locate full time employment suitable to the holder’s skills and abilities and finds an employer within a reasonable time. While seeking employment, the holder of this permit is responsible for all medical and repatriation expenses for the holder, and sponsored immediate relatives, and minor children so as not to create any financial burden on the CNMI, and the holder will maintain sufficient resources or provide a sufficient bond or undertaking by a financially responsible third party to meet these obligations. CNMI law provides no right to an extension of time to seek employment; each request is considered by a hearing officer on the merits of the written request as to whether employment is likely to be obtained within a reasonable time and any risk to the Commonwealth has been met.

 

(ii) 240B permit: Same as 240K permit.

Conditions: This holder of this permit has status in the Commonwealth as the immediate relative of a U.S. citizen, and this permit authorizes the holder to work in the Commonwealth. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing aliens who are immediate relatives of U.S. citizens as of the date of issue and as amended thereafter. Revocations will be published on the DoL website: www.marianaslabor.net. This permit is without effect after November 27, 2011.

 

Documentation required: This permit may be revoked unless supported by documentation confirming identity and citizenship of the holder the equivalent status that was the basis of the issuance of this permit unless the holder notifies the Department of Labor and files an intent to change status no later than thirty days after termination of the marriage or equivalent relationship.

 

Dissolution of marriage or equivalent status: This permit may be revoked under circumstances when the holder is no longer in the marriage or marriage or equivalent status in a family relationship with a U.S. citizen resident in the Commonwealth, and the identity and citizenship of the U.S. citizen spouse as well as that person’s residence in the Commonwealth. Documentation may be presented at the time of issuance of this permit or no later than the next filing date to avoid revocation specified above. The holder of this permit must submit the required documentation and pay the applicable fee.

 

Sponsor's undertaking: The sponsor of the holder of this permit is responsible for all medical and repatriation expenses for the holder, any sponsored alien immediate relatives, and minor children, so as not to create any financial burden on the CNMI and the holder will maintain sufficient resources or provide a sufficient bond or undertaking by a financially responsible third party to meet these obligations.

 

(iv) 240E permit:

Conditions: This holder of this permit has status in the Commonwealth as the immediate relative of a sponsoring alien. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing aliens who are immediate relatives of aliens as of the date of issue and as amended thereafter. Revocations will be published on the DoL website: www.marianaslabor.net. This permit is without effect after November 27, 2011.

 

Documentation required: This permit may be revoked unless supported by documentation confirming identity and citizenship of the holder, the equivalent status that was the basis of the issuance of this permit unless the holder notifies the Department of Labor and files an intent to change status no later than thirty days after termination of the marriage or equivalent relationship.

 

Dissolution of marriage or equivalent status: This permit may be revoked under circumstances when the holder is no longer in the marriage or marriage or equivalent status in a family relationship with a qualified alien resident in the Commonwealth, and the identity and citizenship of the alien spouse as well as that person’s employment and residence in the Commonwealth. Documentation may be presented at the time of issuance of this permit or no later than the next filing date to avoid revocation specified above. The holder of this permit must submit the required documentation and pay the applicable fee.

 

Sponsor’s undertaking: The sponsor of the holder of this permit is responsible for all medical and repatriation expenses for the holder, any sponsored alien immediate relatives, and minor children, so as not to create any financial burden on the CNMI and the holder will maintain sufficient resources or provide a sufficient bond or undertaking by a financially responsible third party to meet these obligations.

 

(v) 240G permit

Conditions: This holder of this permit has status in the Commonwealth as an investor or long-term business owner or operator, and this permit authorizes the holder to work in the Commonwealth. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing aliens who are investors or business owners or operators as of the date of issue or as amended thereafter. Revocations will be published by the Department of Commerce. This permit is without effect after November 27, 2011.

 

Documentation required: This permit may be revoked unless supported by documentation as required by the Department of Commerce with business that was the basis of the issuance of this permit unless the holder notifies the Department of Commerce and files an intent to change status no later than thirty days after termination of the investment or business relationship.

 

Dissolution of business: This permit may be revoked under circumstances when the holder is no longer a participant in the investment or the respect to doing business in the Commonwealth. Documentation may be presented at the time of issuance of this permit or no later than the next filing date to avoid revocation specified above. The holder of this permit must submit the required documentation and pay the applicable fee.

 

(vi) 240H permit:

Conditions: This holder of this permit has status in the Commonwealth as a foreign student, and this permit authorizes the holder to engage in certain types of work in the Commonwealth. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing aliens who are students as of the date of issue or as amended thereafter. Revocations will be published by the Department of Commerce. This permit is without effect after November 27, 2011.

 

Documentation required: This permit may be revoked unless supported by documentation as required by the Department of Commerce education program that was the basis of the issuance of this permit unless the holder notifies the Department of Commerce and files an intent to change status no later than thirty days after end of the course of study or education program.

 

End of course of study: This permit may be revoked under circumstances when the holder is no longer a participant in a course of study or with respect to qualifying as a foreign student in the Commonwealth. Documentation may be presented at the time of issuance of this permit or no later than the next filing date to avoid revocation specified above. The holder of this permit must submit the required documentation and pay the applicable fee.

 

(vii) 240L permit:

Conditions: This permit authorizes the holder to work as a minister or missionary in accordance with an approved application from a bona fide non-profit religious undertaking employer as provided in the Commonwealth’s immigration regulations and, as necessary, to seek to be employed, and to transfer for new employment with a bona fide non-profit religious undertaking employer during the two-year term of the permit. This permit remains in effect until revoked. This permit may be revoked under the terms of CNMI law and regulations governing the employment of aliens as of the date of issue. Revocations will be published on the DoL website: www.marianaslabor.net. This permit is without effect after November 27, 2011.

 

Documentation required: This permit may be revoked at the termination of the current period of admission to the Commonwealth unless, on or Department of Labor and files an Employer Intent Form no later than thirty days after termination of an existing permit. Upon the filing of an Employer Intent Form, the Department of Labor will determine that the employment is with a bona fide non-profit religious undertaking in the Commonwealth and complies with the regulatory requirements to which the permit was subject when issued or last renewed or that the employment qualifies under the regulatory requirements for a permit under Category 240K.

 

Change of employment: This permit may be revoked under circumstances when the holder changes employment unless the holder notifies the before the expiration of the current permit (the next filing date shown above), the bona fide non-profit religious undertaking employer elects to extend the employment of the holder of this permit. The employer must submit the proposed extension application and pay the applicable fee.

 

Seeking employment: While seeking employment, the holder of this permit is responsible for all medical and repatriation expenses for the holder, any sponsored alien immediate relatives, and minor children, so as not to create any financial burden on the CNMI and the holder will maintain sufficient resources or provide a sufficient bond or undertaking by a financially responsible third party to meet these obligations. CNMI law provides no right to an extension of time to seek employment; each request is considered by a hearing officer on the merits of the written request as to whether employment is likely to be obtained within a reasonable time and any risk to the Commonwealth has been met.

 

(viii) 240M permit: Same as 240L permit

 

(ix) 240N permit: Same as 240G permit

 

(x) 240O permit: Same as 240G permit

 

(xi) 240P permit: Same as 240K permit.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).


 

Appendix C

Report-Back Dates for Umbrella Permits

 

Every umbrella permit was issued with a report-back date. The report-back dates were determined initially by the category in which the holder of the permit fell at the time of issuance. Subsequent report-back dates, required by hearing officers, are relevant to fulfilling specific conditions of the permit.

 

(a) Holders of valid work permits. The report-back date for holders of valid work permits on the date when the umbrella permit was issued is the anniversary date on which the current authorized employment is scheduled to end. On the report- back date, if employment has been extended or renewed, or other qualifications for continuance of the permit exist, the permit will continue in effect.

 

(b) Persons whose applications were in process. The report-back date for persons who did not have a valid work permit on the date when the umbrella permit was issued but who had applications pending on that date was January 15, 2010, subsequently extended to February 15, 2010. On the report-back date, if the application has been approved, or other qualifications for continuance of the permit exist, the permit will continue in effect.

 

(c) Persons with pending cases or appeals. The report-back date for persons who did not have a valid work permit on the date when the umbrella permit was issued but who had a pending case or appeal in the Department, the Commonwealth courts, or the federal courts is a staggered set of dates on which the case or appeal was anticipated to be completed. On the report-back date, if the case or appeal has been completed, the holder of the umbrella permit must demonstrate another qualification (such as employment) for continuance of the permit.

 

(d) Persons with extensions of time to transfer. The report-back date for persons who did not have a valid work permit on the date when the umbrella permit was issued but who had a current extension of time to transfer granted by a hearing officer is a staggered set of dates on which the transfer was anticipated to be completed. On the report-back date, the holder of the umbrella permit must demonstrate either employment, substantial likelihood that employment will be secured in the immediate future, or another qualification for continuance of the permit.

 

(e) Persons with immediate relative status. The report-back date for persons who had immediate relative status on the date when the umbrella permit was issued is the anniversary date of the granting of immediate relative status. On the report-back date, the holder of the umbrella permit must demonstrate that the immediate relative status continues to exist or another qualification for continuance of the permit.

 

(f) Persons in other circumstances. The Protocol provided for issuance of umbrella permits to persons in other circumstances. On the report-back date, the holder of the umbrella permit must demonstrate qualification for continuance of the permit.

 

History: Amdts Adopted 32 Com. Reg. 30254 (May 21, 2010); Amdts Proposed 32 Com. Reg. 30159 (Apr. 19, 2010).


 

 

SUBCHAPTER 80-20.2

ALIEN LABOR RULES OF PRACTICE AND PROCEDURE

 


Part 001          General Provisions

§ 80-20.2-001             Scope of Rules

§ 80-20.2-005             Application

 

Part 100          Rules of Practice and Procedure

§ 80-20.2-101             Two Forms of Actions

§ 80-20.2-105             Commencement of Actions

§ 80-20.2-110             Required Investigations

§ 80-20.2-115             Issuance of Notices of Warnings and Violations; Service and Time Limit for Complaints and Answers

§ 80-20.2-120             Time

§ 80-20.2-125             Pleadings Allowed; Form of Motions/Petitions

§ 80-20.2-130             Permissible Motions

§ 80-20.2-135             Application for Default

§ 80-20.2-140             Frivolous, Meritless, or Bad Faith Claims or Defenses

§ 80-20.2-145             General Rules of Pleading

§ 80-20.2-150             Pre-hearing Procedure; Formulation of Issues, Etc.; Settlement Negotiations

§ 80-20.2-155             Depositions and Discovery

§ 80-20.2-160             Depositions; Document Production; and Examinations

§ 80-20.2-165             Discovery Scope and Limits

§ 80-20.2-170             Use of Depositions; Failure to Make Discovery

§ 80-20.2-175             Subpoenas

§ 80-20.2-180             Sureties

§ 80-20.2-185             Security; Proceedings Against Sureties

§ 80-20.2-190             Translators

§ 80-20.2-195             Preparation of Transcripts of Court Proceedings for Appellate and Other Purposes


 

Subchapter Authority: 1 CMC § 2454; 3 CMC § 4424(a)(1); Executive Order 94-3 § 301.

 

Subchapter History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1.

 

Attorney General Opinion 07-02 found that “a nonresident worker, as defined in 3 CMC § 4412(i), who did not have a ‘financial interest in or operated or engaged in any business or become an employer’ before July 28, 1987, may not be either a member for the board of directors nor an officer of a corporation.” 29 Com. Reg. 26679 (July 18, 2007). Attorney General Opinion 07-02 emphasized that mere presence in the Commonwealth before July 28, 1987 does not make a nonresident worker eligible to have an interest in or operate a business or become an employer.

 

Part 001 -       General Provisions

 

§ 80-20.2-001             Scope of Rules

 

The rules in this subchapter govern the practice and procedure in the Division of Labor, Department of Labor and Immigration of the Commonwealth of the Northern Mariana Islands (hereinafter referred to as Labor) in all actions pursued by the Chief of Labor and/or other litigants.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: With respect to the reference to the Department of Labor and Immigration, see Executive Order 03-01 (effective May 9, 2003), the “Department of Labor and Immigration Reorganization Plan of 2003,” returning the immigration functions of the executive branch to the Office of the Attorney General and renaming the Department of Labor. See also the commission comment to NMIAC subchapter 80-20.1.

 

On April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40), as a result of the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, P.L. 110-229, May 8, 2008), which amended the Covenant Act (P.L. 94-241, 1976) which gave the CNMI control over its immigration system. The effect was to remove all references to immigration and deportation functions by regulation in the NMIAC or by law in the Commonwealth Code. See 32 Com. Reg. at 30094 (April 29, 2010).

 

§ 80-20.2-005             Application

 

Cases Pending When Rules Adopted. Proceedings in all cases or other matters before Labor upon the effective date of the rules in this subchapter shall be governed by these rules, unless the proceeding was initiated prior to the effective date of these rules, in which case the parties may or may not stipulate to the adoption of these rules in any proceeding initiated prior to the effective date of these rules.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Part 100 -       Rules of Practice and Procedure

 

§ 80-20.2-101             Two Forms of Actions

 

There shall be two forms of actions; one of which will be known as an “agency case,” the other of which will be known as a “labor case.”

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The Commission moved the comma after “case” inside of the closing quotation mark.

 

§ 80-20.2-105             Commencement of Actions

 

An agency case is commenced by the issuance of a notice of warning or notice of violation; a labor case is also commenced, following the issuance by the Chief of Labor of a notice of warning or notice of violation, by the filing of a written complaint signed by the complainant or his counsel and containing the following:

 

(a)       The caption setting forth the name of the Division of Labor;

 

(b)       The names and addresses of the parties;

 

(c)       The nature of the complaint; and

 

(d)       The relief requested or demanded, provided however that if the relief requested or demanded is the termination of the employment relationship or an application for transfer relief, an unsuccessful good faith attempt to settle the dispute with the Chief of Labor must precede the commencement of a labor case.

 

(e)       A $20.00 filing fee unless a written determination of indigency is made by the Chief of Labor or his designee, or the Director of Labor in which case the petitioner shall be permitted to proceed in forma pauperis.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-110             Required Investigations

 

Upon receipt of a written complaint or confidential oral complaint, later reduced to writing, the Chief of Labor or his designee shall immediately conduct an investigation concerning an alleged violation of any rules or regulations promulgated or contracts or agreements entered, pursuant to the Nonresident Worker’s Act, 3 CMC §§ 4411, et seq., or the Minimum Wage and Hour Act, 4 CMC §§ 9211, et seq, or any injury to a nonresident worker, or working conditions, or employer- provided housing conditions. Within ten days of the initiation of an investigation the Chief of Labor or his designee shall either:

 

(a)       Issue a warning and request to correct the violation of the alleged violator, in which the alleged violator shall comply within ten days of receipt of the issuance of the warning or the Director of Labor shall immediately issue a notice of violation and conduct a hearing pursuant to 1 CMC § 9109, or

 

(b)       Issue a notice of violation and conduct a hearing pursuant to 1 CMC § 9109.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-115             Issuance of Notices of Warnings and Violations; Service and Time Limit for Complaints and Answers

 

(a)       Notice of Warning: Issuance. The issuance of a notice of warning shall occur upon the service of the notice of warning on the named respondent(s). The Chief of Labor, his designee, or an interested or disinterested third party shall be responsible for prompt service of the notice of warning.

 

(b)       Notice of Violation: Issuance. The issuance of a notice of violation shall occur upon the service of the notice of violation on the named respondent(s). The Chief of Labor, his designee, or an interested or disinterested third party shall be responsible for prompt service of the notice of violation.

 

(c)       Service of Complaint. Upon the issuance of a notice of warning or notice of violation, a complainant, his counsel, or an interested or disinterested third party shall serve, no later than five days following the issuance of a notice of warning or notice of violation, upon the named respondent(s) a copy of the complaint meeting the requirements of § 80-20.2-101(a)-(d). Service of a complaint shall be made anywhere within the territorial limits of the Commonwealth of the Northern Mariana Islands.

 

(d)       Service of Complaint: Person to Be Served. The service of a complaint by a complainant, his counsel, or an interested or disinterested third party shall be upon the named respondent(s)  in the following manner:

(1)       By delivery at the dwelling house(s) or usual place(s) of abode with some person of suitable age and discretion then residing therein or to an agent authorized by appointment or law to receive such service;

(2)       By mailing to a respondent(s)            at the address provided by the respondent(s)            on the employment contract, unless the respondent(s) has notified Labor in writing of a change of address in which case the service by mailing shall be made to the address last provided by a party;

(3)       Where a party is represented by an attorney, service may be made upon the attorney in lieu of service upon the party, by delivery or mailing, to the attorney or office of the attorney.

 

(e)       Service of Answer. Upon the receipt of a complaint from a complainant, his counsel, or an interested or disinterested third party, the named respondent(s) shall, within ten calendar days, file an answer in writing with the Division of Labor and serve such answer on the complainant or his counsel.

 

Modified, 1 CMC § 3806(c), (e), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-120             Time

 

(a)       Computation. In computing any period of time prescribed or allowed by the rules in this subchapter, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday; or, when the act to be done is the filing of a paper at Labor, a day in which weather or other conditions have made the offices of Labor inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When a period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, “legal holiday” includes New Year’s Day, Commonwealth Day, President’s Day, Good Friday, Memorial Day, Independence Day, Labor Day, Columbus Day, Citizenship Day, Veteran’s Day, Thanksgiving Day, Constitution Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the Northern Mariana Islands.

 

(b)       Enlargement. When by the rules in this subchapter or by a notice given thereunder or by administrative order an act is required or allowed to be done at or within a specified time, the administrative hearing officer, for good cause shown, may at any time in his discretion:

(1)       With or without motion or notice, by administrative order, enlarge the period if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, provided:

(i)        A request for continuance of an administrative hearing must be submitted in writing at least five days prior to the hearing and at least one day prior in “emergency” situations. The requesting party shall serve notice on all parties including the agency, and unless the parties stipulate to the continuance, a hearing on the request for continuance shall be mandatory.

(ii)       The request for continuance of an administrative hearing must be accompanied by a written explanation of the reasons for the continuance.

(iii)      The request may be granted only for good cause shown and for no more than thirty days absent exceptional circumstances.

(iv)      In the event a request for a continuance of an administrative hearing is denied, the administrative hearing officer may conduct the hearing at the scheduled date and time with or without the parties or may proceed ex parte in the case of the non-attendance of either or both of the parties in a labor or agency case, or their witnesses or counsel if notice was given, pursuant to § 80-20.2-115, to the parties at least ten days prior to the hearing either by mail.

(2)       Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

 

(c)       For Motions--Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than fourteen days before the time specified for the hearing by Labor, unless a different period is fixed by the rules in this subchapter or by administrative order. Such an administrative order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than five days before the hearing, unless permitted by administrative order to be served at some other time.

 

Modified, 1 CMC § 3806(c), (d), (e), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-125             Pleadings Allowed; Form of Motions/Petitions

 

(a)       Pleadings. There shall be notice of violation, notice of warning, complaint and an answer; a reply to a counterclaim if denominated as such in an answer; an answer to a cross-claim, if the answer contains a cross-claim. No other pleading shall be allowed, and the failure of a third-party to answer a third-party complaint shall not function as a bar to continuation of the proceedings.

 

(b)       Motions and Petitions.

(1)       An application to the administrative hearing officer for an order shall be by motion which, unless made during an administrative hearing, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.

(2)       A petition for a hearing with an administrative hearing officer, with the exception of a petition for a declaratory ruling pursuant to 1 CMC § 9107, shall be made by any party aggrieved by a finding or determination of the Chief or his designee within fifteen days of the issuance of such finding or determination. If no such petition is filed within fifteen days, the finding or determination shall be unreviewable administratively.

(i)        Any petition filed pursuant to subsection (b)(2) shall be typewritten and signed by the petitioner or the petitioner’s counsel and shall be accompanied by a $25.00 filing fee unless a written determination of indigency is made by the Chief of Labor or his designee, or the Director of Labor in which case the petitioner shall be permitted to proceed in forma pauperis.

(ii)       Any petition filed pursuant to subsection (b)(2) shall be served by the petitioner, his counsel, or an interested or disinterested third party, upon the respondent no later than five days following the filing of the petition.

(3)       A petition for a declaratory ruling pursuant to 1 CMC § 9107 shall be treated as a motion, except as to the status of the disposition of the petition as provided for in 1 CMC § 9107.

(4)       The rules applicable to captions and other matters of form of pleadings apply to all motions and petitions provided for by the rules in this subchapter.

(5)       All motions and petitions shall be signed in accordance with § 80-20.2-140.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: In subsection (a), the Commission inserted a period between “cross claim” and “No” to correct a manifest error.

 

§ 80-20.2-130             Permissible Motions

 

(a)       Submission of Motion and Opposition to Motion.

(1)       Submission of Motion. A party making a motion shall file together with the motion a separate memorandum of reasons, including citation of supporting authorities, why the motion should be granted. Affidavits and other documents setting forth or evidencing facts on which the motion is based shall be filed with the motion.

(2)       Submission of Opposition to a Motion and Reply. A party opposing a motion may file and serve any opposition to the motion not later than five days preceding the noticed date of hearing, unless another period is fixed by administrative order. The party shall file together with the opposition to the motion a separate memorandum of reasons, including citation of supporting authorities, why the motion should not be granted. Affidavits and other documents setting forth or evidencing facts on which the opposition is based shall be filed with the opposition. The movant shall serve and file any reply to the opposition not less than two days preceding the hearing date.

 

(b)       Service. All papers filed pursuant to subsection (a) of this rule shall be served pursuant to § 80-20.2-115(d)(1)-(d)(3).

 

(c)       Permissible Motions. The following are the only permissible motions before Labor in the practice and procedure of an agency case or a labor case:

(1)       Motion to Dismiss.

(i)        A motion to dismiss may be filed on the following grounds:

(A)      Lack of jurisdiction over the subject matter;

(B)       Lack jurisdiction over the person;

(C)       Insufficiency of process;

(D)      Insufficiency of service of process;

(E)       Failure to state a claim upon which relief can be granted.

(ii)       If, on a motion to dismiss asserting the failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the agency, the motion shall be treated as one for summary disposition and disposed of as provided in subsection (c)(2), and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by subsection (c)(2)(i).

(2)       Motion for Summary Disposition. A motion for summary disposition may be filed with respect to the whole or part of an action taken by the Chief of Labor or with respect to a claim, counterclaim, or cross-claim on the following grounds:

(i)        No genuine issue of material fact exists as to the subject matter of which the movant asserts and the movant is entitled to disposition as a matter of law as to the subject matter of the movant’s assertion.

(3)       Motion for Disposition on the Pleadings. After the pleadings are closed but within such time as not to delay the hearing, any party may move for disposition on the pleadings. If, on a motion for disposition on the pleadings, matters outside the pleadings are presented to and not excluded by the agency, the motion shall be treated as one for summary disposition and disposed of as provided in subsection (c)(2), and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by subsection (c)(2)(i).

(4)       Motion to Enforce Bond. A motion to enforce the liability of a surety may be filed on the following grounds:

(i)        The successful conclusion of an agency case by the Chief or his designee whereby such findings of fact and conclusions of law indicate that the respondent has violated a provision of the Nonresident Worker’s Act, 3 CMC §§ 4411, et seq., or the Minimum Wage and Hour Act, 4 CMC §§ 9211, et seq., or duly promulgated regulations thereto, which findings of fact and conclusions of law are not the subject of an administrative or judicial appeal.

(ii)       The successful conclusion of a labor case by the complainant whereupon such findings of fact and conclusions of law indicate that the respondent has violated a provision of the Nonresident Worker’s Act, 3 CMC §§ 4411, et seq., or the Minimum Wage and Hour Act, 4 CMC §§ 9211, et seq., or duly promulgated regulations thereto, which findings of fact and conclusions of law are not the subject of an administrative or judicial appeal.

(5)       Motion for Sanctions. A motion to recover sanctions and attorney’s fees for an opposing party’s advocation of a claim or defense that is frivolous, without merit, or in bad faith shall be permitted pursuant to § 80-20.2-140 of this subchapter.

 

Modified, 1 CMC § 3806(c), (d), (e), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs of subsection (c)(1) were not designated. The Commission designated subsections (c)(1)(i)           and (ii).

 

§ 80-20.2-135             Application for Default

 

(a)       Application for Default. When an application for an entry of a default or a default judgment occurs such application is a representation that due service has been made of all pleadings or papers required by these Alien Labor Rules of Practice and Procedure to be made as a condition to the relief sought.

 

(b)       Relief from Default. A party who has been prejudiced by failure to receive due notice may apply to the agency for appropriate relief.

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-140             Frivolous, Meritless, or Bad Faith Claims or Defenses

 

Any complainant or respondent may by motion, file and recover sanctions and attorney’s fees for an opposing party’s advocation of a claim or defense that is frivolous, without merit, or in bad faith.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-145             General Rules of Pleading

 

(a)       Effect of Failure to Deny. Averment in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

 

(b)       Pleading to Be Concise and Direct. Each averment of a pleading shall be simple, concise, and direct. A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. All statements shall be made subject to the obligations set forth in § 80-20.2-140.

 

(c)       Appearance. Whenever it appears by suggestion of the parties or otherwise that the agency lacks jurisdiction of the subject matter, the agency shall dismiss the action.

 

(d)       Construction of Pleadings. All pleadings shall be construed as to do substantial justice.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-150             Pre-hearing Procedure; Formulation of Issues, Etc.; Settlement Negotiations

 

(a)       In any action, the agency may in its discretion or upon the request of any party to the litigation direct the attorneys for the parties to appear before it for a conference to consider simplification of the issues; the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; the limitation of the number of expert witnesses; or such other matters as may aid in the disposition of the action, to include an expedited period of discovery.

 

(b)       The agency shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for hearing to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the hearing to prevent manifest injustice. The agency in its discretion may establish by rule a pre-hearing calendar on which actions may be placed for consideration as above provided.

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a)   and (b).

 

§ 80-20.2-155             Depositions and Discovery

 

Following the commencement of an agency case or a labor case, the Chief or his designee, the respondent, the complainant, or the employee on whose behalf the Chief or his designee is acting, may take discovery by depositions upon oral examination or written questions; production of documents or things; or physical and mental examinations pursuant to § 80-20.2-160. Unless provided otherwise by the agency, the parties will, in good faith, attempt by stipulation to provide that depositions, if necessary, will be taken before any qualified person, at any reasonable time or place and upon reasonable notice.

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-160             Depositions; Document Production; and Examinations

 

(a)       Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; production of documents or things; or physical and mental examinations.

 

(b)       Depositions upon Oral Examination. After commencement of the action and following a good faith attempt to stipulate to a deposition schedule, any party may take the testimony of any party, to include those who act in the official capacity of a party, by deposition upon oral examination.

(1)       Notice of Examination. A party desiring to take the deposition of any party upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs.

(2)       Non-stenographic Recording. The testimony at a deposition may be recorded by other than stenographic means. In such a case, the notice of taking the deposition shall state the manner of recording and the methods and means of transcribing the testimony into written form to assure that the recorded testimony will be accurate and trustworthy. The party calling the deposition shall cause the same to be transcribed. The tape recording shall be made available should a question arise as to the accuracy of the written transcription. Any objections, changes made by the witness, signature identifying the deposition, or the statement of the officer that is required if the witness does not sign, or the certification of the officer shall be set forth in a writing to accompany a deposition recorded by non-stenographic means.

(3)       Production of Documents and Things. The notice to a party deponent may be accompanied by a request for the production of documents and tangible things at the taking of the deposition.

(4)       Deposition of Organization. A party may in his notice and in a subpoena name as a party deponent a private corporation or a partnership or association and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth for each person designated, the matters on which he will testify. A subpoena shall advise the party deponent of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

(5)       Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties.

 

(c)       Depositions upon Written Questions.

(1)       Service Questions; Notice. After commencement of the action and following a good faith attempt to stipulate to a deposition schedule, any party may take the testimony of any party, by deposition upon written questions. A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating:

(i)        The name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; and

(ii)       The name or descriptive title and address of the officer before whom the depositions is to be taken. A deposition upon written questions may be taken of a private corporation or a partnership or association in accordance with the provisions of subsection (b)(4).

(iii)      Within ten days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within five days after being served with cross questions, a party may serve redirect questions upon all other parties. Within five days after being served with redirect questions, a party may serve recross questions upon all other parties.

(2)       Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him.

(3)       Notice of Filing. When the deposition is filed the party taking it shall promptly give notice thereof to all other parties.

 

(d)       Production of Documents or Things.

(1)       Scope. Any party may serve on any other party a request to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, or sample any tangible things which constitute or contain relevant matters which are in the possession, custody or control of the party upon whom the request is served.

(2)       Procedure.

(i)        The request may be served upon any party after commencement of the action and, if necessary, may be accompanied by a subpoena issued by the Chief for the production of documentary evidence at a deposition or at a hearing. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 10 days after the service of the request, or waive any objection to the request.

(ii)       The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an administrative order with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection.

(iii)      A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

(3)       Duty to Produce Business Records. Upon the request of a party, the agency shall have the general power to order production of books, papers, documents and records required to be kept by a party by statute or regulation.

 

(e)       Physical and Mental Examinations.

(1)       Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the agency in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist or to produce for examination the person in his custody or legal control. The order may be made only on petition for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

(2)       Report of Examining Physician or Psychologist.

(i)        If requested by the party against whom an order for an examination is made or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician or psychologist setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The agency, upon petition, may make an order against a party requiring delivery of a report, and if a physician or psychologist fails or refuses to make a report the agency may exclude his testimony if offered at the hearing.

(ii)       By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

(iii)      This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or psychologist or the taking of a deposition of the physician or psychologist in accordance with the provisions of any other rule.

(3)       Definition. For the purposes of this section, a psychologist is a psychologist licensed or certified by a state, District of Columbia, the Commonwealth of the Northern Mariana Islands, or any member country of the Commonwealth of Nations of the United Kingdom.

 

Modified, 1 CMC § 3806(c), (d), (e), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs of subsection (d)(2) were not designated. The Commission designated subsections (d)(2)(i) through (iii).

 

§ 80-20.2-165             Discovery Scope and Limits

 

(a)       Discovery Scope and Limits. Unless otherwise expanded by agency order in accordance with the rules in this subchapter, the scope of discovery is limited as follows:

(1)       In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of parties; to include officers, directors, managing agents of a party organization, or other persons which have the consent of the organization to testify on its behalf, having knowledge of any discoverable matter.

(2)       Limitation. The frequency or extent of use of the discovery methods set forth in subsection (a)(1) shall be further limited by the agency if it determines that:

(i)        The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii)       The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(iii)      The discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.

(3)       Trial Preparation: Materials.

(i)        Subject to the provisions of subsection (a)(2) of this section, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (a)(1) of this section and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent)            only upon a showing that the party seeking discovery has a clear and substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the agency shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

(ii)       A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this subsection, a statement previously made is:

(A)      A written statement signed or otherwise adopted or approved by the person making it, or

(B)       A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4)       Hearing Preparation: Experts. Discovery of facts known and opinions held by experts qualified before the hearing in which the expert is expected to testify, are to be disclosed at least five days prior to the hearing in which the expert is expected to testify.

 

(b)       Protective Orders.

(1)       Upon petition by a party and for good cause shown, the agency may make any order which is required to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(i)        That the discovery not be had;

(ii)       That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(iii)      That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(iv)      That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

(2)       If the petition for a protective order is denied in whole or in part, the agency may, on such terms and conditions as are just, order that any party provide or permit discovery.

 

(c)       Supplementation of Responses. A party who has responded to a request for discovery with a response when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1)       A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.

(2)       A party is under a duty seasonably to amend a prior response if he obtains information which shows his response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances indicate that a failure to amend the response is in substance a knowing concealment.

 

(d)       Discovery Conference.

(1)       At any time after commencement of an action the agency may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The agency shall do so upon petition by the attorney for any party if the petition includes:

(i)        A statement of the issues as they then appear;

(ii)       A proposed plan and schedule of discovery;

(iii)      Any limitations proposed to be placed on discovery;

(iv)      Any other proposed orders with respect to discovery; and

(v)       A statement showing that the attorney making the petition has made a reasonable effort to reach agreement with opposing attorneys on the matters set forth in the petition. Each party and his attorney are under a duty to participate in good faith in the framing of discovery if a plan is proposed by the attorney for any party. Notice of the petition shall be served on all parties. Objections or additions to matters set forth in the petition shall be served not later than seven days after service of the petition.

(2)       Following a discovery conference, the agency shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended upon a petition showing good cause.

(3)       Subject to the right of a party who properly petitions for a discovery conference to prompt convening of the conference, the agency may combine the discovery conference with a pre-trial hearing authorized by § 80-20.2-150.

 

(e)       Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign the request, response, or objection and state his address. The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is not in furtherance of a claim or defense that is frivolous, without merit, or in bad faith. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection and a party shall not be obligated to take any action with respect to it until it is signed.

 

(f)        Persons Before Whom Depositions May Be Taken. Within the Northern Mariana Islands, the United States, the Trust Territory of the Pacific Islands, or a territory or insular possession subject to the dominion of the United States, or in foreign countries, depositions shall be taken on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the laws of the Northern Mariana Islands or of the United States.

 

(g)       Examination and Cross Examination; Record of Examination; Oath; Objections. Examination and cross- examination of witnesses may proceed as permitted at the hearing under the provisions of the Administrative Procedure Act [1 CMC §§ 9101, et seq.]. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically or by audiotape or videotape. If requested by one of the parties, the testimony shall be transcribed. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in the sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

 

(h)       Petition to Terminate or Limit Examination. At any time during the taking of the deposition, on petition of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the agency may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided within the ambit of subsections (a)(2)(i)-(iii) and (b)(1)-(b)(4). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the agency in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a petition for an order. The provisions of § 80-20.2-140 apply to the award of expenses incurred in relation to the petition.

 

(i)        Submission to Witness; Changes, Signing. When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with at statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waived the signing or the witness is ill and cannot be found or refuses to sign. If the deposition is not signed by the witness within ten days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed.

 

(j)        Certification and Filing by Officer; Exhibits; Copies; Notice of Filing.

(1)(i)   The officer shall certify on the deposition that a witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness. Unless otherwise ordered by the agency, he shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “deposition of (here insert name of witness)” and shall promptly file it with the agency in which the action is pending.

(ii)       Documents and things produced for inspection during the examination of the witness, shall, upon request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, yet if the documents or thing produced for inspection cannot be annexed to the deposition it shall be made available for the requesting party for inspection and or copying at a reasonable place and at reasonable times.

(2)       Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party.

(3)       The party taking the deposition shall give prompt notice of its filing to all other parties.

 

(k)       Failure to Attend; Expenses.

If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the agency may order the party giving the notice to pay to such other party the reasonable expenses incurred by him and his attorney in attending, including reasonable attorney’s fees.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs of subsections (a)(3), (b), (d), and (j)(1) were not designated. The Commission designated subsections (a)(3)(i) and (ii), (b)(1) and (b)(2), (d)(1)                through (d)(3), and (j)(1)(i) and (ii).

 

In subsection (j)(1), the Commission deleted the repeated phrase “record of the.”

 

§ 80-20.2-170             Use of Depositions; Failure to Make Discovery

 

(a)       Use of Depositions. At a hearing, any part or all of a deposition, so far as admissible under the Administrative Procedure Act [1 CMC §§ 9101, et seq.] as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:

(1)       Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness, or for any other purpose permitted by the Administrative Procedure Act.

(2)       The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated to testify on behalf of a private corporation, partnership or association which is a party may be used by an adverse party for any purpose.

(3)       The deposition of a party may be used by any party for any purpose if the agency finds:

(i)        That the witness is dead; or

(ii)       That the witness is out of the Northern Mariana Islands, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(iii)      That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or

(iv)      That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(v)       Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of administrative efficiency and with due regard to the importance of presenting the testimony of witnesses orally in agency proceedings, to allow the deposition to be used.

(4)       If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

 

(b)       Effect of Errors and Irregularities in Depositions.

(1)       As to Notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(2)       As to Disqualification of Officer. Objection to taking a deposition because of disqualification of the officer whom it is to be taken is waived unless made before the taking of the deposition begins or as soon as thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(3)       As to Taking of Deposition.

(i)        Objections to the competency of a deponent or prospective deponent or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at the time.

(ii)       Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(iii)      Objections to the form of written questions are waived unless served in writing upon the party propounding them within five days after service of the questions.

(4)       As to Completion of Return of Deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with are waived unless served in writing upon the party noticing the deposition within seven days after service of the transcription.

 

(c)       Petition for Order Compelling Discovery. A party upon reasonable notice to other parties and all persons affected thereby, may petition for an order compelling discovery as follows:

(1)       Application. An application for an order compelling discovery may be made to the agency.

(2)       Petition.

(i)        If a party deponent fails to answer a question propounded or submitted under § 80-20.2-160, or a corporation or other entity fails to make a designation under § 80-20.2-160(b)(4), or if a party, in response to a request for inspection submitted under § 80-20.2-160(b)(3), fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may petition for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.

(ii)       If the agency denies the petition in whole or in part, it may make such protective order as it would have been empowered to make on a petition made pursuant to § 80-20.2-165(b).

(A)      Evasive or incomplete answer. For purposes of subsection (c) an evasive or incomplete answer is to be treated as a failure to answer.

(B)       Award of expenses of petition. If the petition is granted, the agency shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the petition or the party or attorney advising such conduct or both of them to pay to the petitioning party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the agency finds that the opposition to the petition was substantially justified or that other circumstances make an award of expenses an impairment to administrative efficiency.

(iii)      If the petition is denied, the agency shall, after opportunity for hearing, require the petitioning party or the attorney advising the petitioning party or both of them to pay to the party who opposed the petition the reasonable expenses incurred in opposing the petition, including attorney’s fees, unless the agency finds that the making of the petition was substantially justified or that other circumstances make an award of expenses an impairment to administrative efficiency.

(iv)      If the petition is granted in part and denied in part, the agency may apportion the reasonable expenses incurred in relation to the petition among the parties and persons in a just manner.

 

(d)       Failure to Comply with Order.

(1)       If a party deponent fails to be sworn or to answer a question after being directed to do so by the agency, the failure may be considered a contempt of the agency and any permissible adverse inference may be drawn therefrom.

(2)       If a party or an officer, director, or managing agent of a party or a person designated under § 80-20.2-160(b)(4) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (c) if this section or if a party fails to obey an order entered under § 80-20.2-165(b), the agency in which the action is pending may make such orders in regard to the failure as are necessary to aid in administrative efficiency, and among others the following:

(i)        An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order;

(ii)       An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;

(iii)      An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering an order of default against the disobedient party;

(iv)      In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of the agency the failure to obey any orders, except an order to submit to a physical or mental examination, and any permissible adverse inference may be drawn therefrom;

(v)       Where a party has failed to comply with an order under § 80-20.2-160(e)(1) requiring him to submit another to a physical or mental examination, such orders as are listed in subsection (d)(2)(i)-(iii), unless the party failing to comply shows that he is unable to produce such person for examination.

(3)       In lieu of any of the foregoing orders or in addition thereto, the agency shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the agency finds that the failure was substantially justified or that the other circumstances make an award of expenses an impairment to administrative efficiency.

 

(e)       Failure for Party to Attend at Own Deposition or Respond to Request for Inspection.

(1)       If a party or an officer, director, or managing agent of a party designated under § 80-20.2-160(b)(4) to testify on behalf of a party fails:

(i)        To appear before the officer who is to take his deposition, after being served with a proper notice; or

(ii)       To serve a written response to a request for inspection submitted under § 80-20.2-160(b)(3), after proper service of the request, the agency in which the action is pending on petition may make such orders in regard to the failure as are necessary to aid in administrative efficiency, and among others it may take any action authorized under subsection (d)(2)(i)-(iii). In lieu of any order or addition thereto, the agency shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the agency finds that the failure was substantially justified or that other circumstances make an award of expenses an impairment to administrative efficiency.

(2)       The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by § 80-20.2-165(b).

 

(f)        Failure to Take Part in the Framing of a Discovery Plan. If a party or his attorney fails to participate in a good faith attempt to stipulate to a deposition plan as is required by § 80-20.2-155, the agency may, after opportunity for hearing, require such party or his attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs of subsections (c)(2)             and (e) were not designated. The Commission designated subsections (c)(2)(i) through (iv) and (e)(1) and (e)(2). The Commission also designated subsection (d)(3).

 

In subsection (d)(2), the Commission changed “order” to “orders” and corrected the spelling of “administrative” to correct manifest errors.

 

§ 80-20.2-175             Subpoenas

 

(a)       For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the agency, shall state the name of the agency and the title of the action, and shall command each person to whom it is directed to attend a hearing and give testimony at a time and place therein specified. The hearing officer as may be appointed by the Director, shall issue a subpoena for the attendance of witnesses at a hearing, and the Chief may issue a subpoena for the production of documentary evidence at a deposition or at a hearing.

 

(b)       For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or records designated therein; but the agency, upon petition made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may

(1)       Quash or modify the subpoena if it is unreasonable and oppressive or;

(2)       Condition denial of the petition upon the advancement by the person in whose behalf the subpoena is issued, with the exception of the Chief or his designee, the reasonable cost of producing the books, papers, documents, or records.

 

(c)       Service.

(1)       A subpoena may be served by the Chief or his designee in an agency case, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person.

(i)        The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by § 80-20.2-160, but in that event the subpoena will be subject to the provisions of a petition pursuant to subsection (b) of this section and subject to the proscriptions of § 80-20.2-165(a)(2)(i)-(iii) and (b)(1)-(b)(4).

(ii)       The person to whom the subpoena is directed may, within seven days after the service thereof, or on or before the time specified in the subpoena for compliance if such time is less than seven days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the agency. The party serving the subpoena may, if objection has been made, petition upon notice to the deponent for an order at any time before or during the taking of the deposition.

(2)       A party deponent may be required to attend an examination only on the island wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the agency.

 

(d)       Subpoena for a Hearing. At a request of any party, a subpoena for the attendance of any witness at a hearing shall be issued by the Chief or his designee or an administrative hearing officer. A subpoena requiring the attendance of a witness at a hearing may be served anywhere within the Northern Mariana Islands.

 

(e)       Contempt. Failure by a person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the agency from which the subpoena issued, and a permissible adverse inference may be drawn therefrom.

 

Modified, 1 CMC § 3806(c), (d), (e), (f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The Commission designated subsection (c)(1).

 

In subsection (c)(1)(ii), the Commission corrected the spelling of “seven.”

 

§ 80-20.2-180             Sureties

 

Execution of Bond. The Director shall provide by regulation the necessary prerequisites for the acceptance of a bond. Upon fulfillment of these prerequisites, the Chief shall accept such a bond if the bond or similar undertaking is executed by the surety or sureties alone.

 

History: Amdts Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Amdts Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-185             Security; Proceedings Against Sureties

 

Whenever, by statute or regulation, a bond is required and security is given in the form of a bond with one or more sureties, each surety submits himself to the jurisdiction of the agency and irrevocably appoints the Director as his agent upon whom any papers affecting his liability on the bond may be served. His liability may be enforced on motion by the agency or a prevailing complainant in a labor case without the necessity of an independent action. The motion and such notice of the motion as the agency prescribes may be served on the Director, who shall forthwith mail copies to the sureties if their addresses are known.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

§ 80-20.2-190             Translators

 

In any agency or labor case which may require testimony to be translated in a language other than Chamorro, Carolinian, English or the predominant language of the Republic of the Philippines, the party who anticipates producing such testimony shall provide for the translation at his own expense.

 

Modified, 1 CMC § 3806(f), (g).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The Commission corrected the spelling of “Philippines.”

 

§ 80-20.2-195             Preparation of Transcripts of Court Proceedings for Appellate and Other Purposes

 

(a)       Upon the request of any party for a transcript of any proceedings in Labor, aside from the transcription of a proceeding for the purposes of judicial review, the agency, or the parties may transcribe the proceedings. If the agency transcribes the proceedings, the party requesting the transcript shall receive the transcription upon paying the fee established by regulation.

 

(b)       In the case of transcripts needed for administrative appeals or further agency proceedings, and in the event one of the parties elects to transcribe the proceedings, it shall be the sole responsibility of the party requesting the transcript to assure that the transcript is completed, certified, and returned to the agency within the time established by the agency, and any extensions thereof, and to pay for the transcription costs.

 

(c)       Should the party requesting the transcript fail to procure the transcript by the ordered return date, and any reasonable extensions thereof, any opposing party may petition the agency to dismiss the party’s action or proceeding for which the transcript was ordered.

 

(d)       In the event an appellate transcript is sought for judicial review in the Commonwealth Superior Court or any successor forum, the applicable Commonwealth statute and the Commonwealth Rules of Civil Procedure shall govern the procedures concerning the production of the transcript.

 

(e)       If any party or the agency has any reason to doubt or question the accuracy of any transcription produced pursuant to this section, the original tape(s)           shall be made available to ascertain the accuracy of the transcription. In the case of any conflict, the audio on the original tape(s), shall prevail.

 

(f)        In the event a person designated to do the transcription work dies, becomes incapacitated, or certifies to the court that for other reasons they are unable to complete the transcript within the time designated by the agency, it is the responsibility of the party ordering the transcript to notify the agency and opposing counsel as soon as such death, incapacity, or inability is discovered.

 

(g)       Extensions of time to prepare the transcript shall be given upon written request and for good cause being shown.

 

(h)       The agency shall confer with the party’s counsel or the party if not represented by counsel and any opposing party and/or counsel as well as the person designated by the party to transcribe the cassette tape(s) into written form. As a result of the conference and if the agency is satisfied that an accurate transcript can be prepared, the agency will order a return date for the transcript, giving due consideration to available reliable transcribing services, and necessary copies if it is needed for an appeal or further agency proceedings.

 

(i)        Any transcript prepared shall be in a form acceptable to the agency. Any such transcript shall be accompanied by a written certification of the person actually doing the transcribing work, which certification shall be substantially in the following form:

 

            “I, _____________________________________________,

                                                (Name)

did the actual transcription work for the above proceedings in the case of

 _______________________________________________________

            (Title of Agency Case or Labor Case and Case #).

 

In performing this function I had possession of the duplicate/original (Circle One) cassette tape(s) provided to me by _______________________________________

            (Name of Party)

and converted the audio content thereon to the above written form to the best of my ability without any alteration, revision or editing. If there are any places in the above transcript which are noted as “unintelligible,” “phonetic,” or “?”, I was unable to accurately determine that portion of the taped proceedings.

 

            I further state that I have no personal interest in the above proceedings, nor does any employee of mine have any such interest. I have not been paid any bonus or gratuity for my work by anyone and have charged only what would be my normal charges.

 

            I hereby declare under penalty of perjury that the above is true and correct. Executed at Saipan, Northern Mariana Islands,

 

___________________________ .

(Date)

 

______________________________________________

Signature of Transcriber

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 16 Com. Reg. 12480 (Oct. 15, 1994); Proposed 16 Com. Reg. 12397 (Sept. 15, 1994).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a)   through (i).

 


SUBCHAPTER 80-20.3       

MORATORIUM ON HIRING NON-RESIDENT WORKERS RULES AND REGULATIONS

 


Part 001          General Provisions

[Reserved.]

 

Part 100          Implementation of Public Law 11-6

§ 80-20.3-101             Renewals

§ 80-20.3-105             Replacement Workers

§ 80-20.3-110             Major New Development and Critical Services Exemptions

§ 80-20.3-115             Transfers

§ 80-20.3-120             Hiring Workers Who Have an Authorization to Seek a Temporary Employer

§ 80-20.3-125             Pending Applications


 

Subchapter Authority: 3 CMC § 4606.

 

Subchapter History: Amdts Emergency and Proposed 24 Com. Reg. 19392 and 19415 (July 29, 2002) (effective for 120 days from June 26, 2002);* Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998) (effective for 120 days from June 16, 1998).

 

*A notice of adoption for the July 2002 proposed amendments has not been published.

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754)        on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1.

 

PL 11-6, codified as amended at 3 CMC §§ 4601-4607, took effect March 27, 1998. PL 11-6 § 2 imposes a moratorium on the hiring of nonresident workers in the Commonwealth, except according to its provisions. See 3 CMC § 4601. 3 CMC § 4606 authorizes the Department of Labor and Immigration (now the Department of Labor) to enforce the act and to promulgate the necessary regulations to implement the act.

 

Part 001 -       General Provisions

 

[Reserved.]

 

Part 100 -       Implementation of Public Law 11-6

 

§ 80-20.3-101             Renewals

 

A renewal application should be filed with the Division of Labor 30 days prior to the expiration of the worker’s current contract. If the employer does not intend to renew the employee, the employer should give the employee 30 days notice of its intent not to renew in order to enable the employee to seek alternate employment pursuant to § 3(b) of Public Law 11-6 [3 CMC § 4602(b)].

 

History: Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

§ 80-20.3-105             Replacement Workers

 

(a)       “Replacement” refers to potential employees who are not currently residing in the CNMI. An employee in possession of a valid temporary work authorization or an employee who transfers to an employer either consensually during the contractual period or at the expiration of the contract period is not a “replacement” worker for the purposes of Public Law 11-6.

 

(b)       Prior to submission of an application for a replacement worker, an employer must check with the Division of Employment Services to determine if “there is a nonresident worker already lawfully in the Commonwealth, seeking employment, and eligible and qualified for the position.” Public Law 11-6 § 4 [3 CMC § 4603]. The Division of Employment Services will maintain a list of nonresident workers who are lawfully in the Commonwealth and seeking employment, as categorized by job classification and other skills. All nonresident workers on the list will be considered eligible for unskilled positions. An employer must make a good-faith effort to contact any individual deemed “eligible and qualified for the position” and determine if that individual suits the employer’s needs. If a match on the Employment Services’ list is found, the burden is on the employer to inform Employment Services if the employee is not “eligible and qualified for the position” or cannot be located. Once the employer provides this information to Employment Services, Employment Services will certify that the employer may hire a replacement worker.

 

(c)       To submit an application for a replacement worker under Public Law 11-6, the employer must submit the original labor and immigration identification system (LIIDS) card and a verification of departure of the employee who is being replaced. Under exceptional circumstances and upon approval by the Director of Labor or his or her designee, a notarized affidavit explaining the absence of the original LIIDS card with a copy of the LIIDS card attached will be accepted by the processing section in lieu of the original card.

 

(d)       The employer may bring the application to the Division of Labor (“Labor”) for review prior to submission of the verification of departure to ensure that the application is complete. However, the application fee shall not be remitted to the Treasury nor will the application be accepted by Labor prior to submission of the LIIDS card and verification of departure.

 

(e)       A worker may be considered a “replacement” for another worker if the prospective employee’s application is submitted to the Division of Labor within 90 days from the date of the previous worker’s expiration of entry permit. An employer may employ only one replacement worker for each worker that departs. Note that the law requires that the replacement worker be hired for the same position as that of the employee who has departed.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

§ 80-20.3-110             Major New Development and Critical Services Exemptions

 

(a)       Only the Governor may approve an exemption under PL 11-6 § 2(d) and (e) [3 CMC § 4601(d) and (e)]. Any request for these exemptions should be put in writing and forwarded, with the supporting documentation to substantiate the exemption criteria, to the Office of the Governor for review.

 

(b)       The burden is on the employer to provide sufficient documentation to substantiate its claim that it meets the exemption criteria. If the documentation is insufficient, the Governor or his or her designee may request additional support or may deny the request. Note that meeting the exemption criteria does not automatically entitle the employer to the exemption; the discretion lies with the Governor.

 

History: Amdts Emergency and Proposed 24 Com. Reg. 19392 and 19415 (July 29, 2002)        (effective for 120 days from June 26, 2002); Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)         (effective for 120 days from June 16, 1998).

 

Commission Comment: The July 2002 amendments proposed to repeal and re-enact this section in its entirety, amend subsection (a), add new subsections (b) and (c), and re-designate and amend subsection (b). A notice of adoption was never published and, therefore, the Commission has not incorporated the proposed changes.

 

§ 80-20.3-115             Transfers

 

(a)       This section amends section VI(F)(10)(d)     of the Alien Labor Rules and Regulations.

 

(b)       In General

(1)       Under Public Law 11-6, there are three kinds of transfer: consensual, after expiration of a contract, and through an administrative order issued by the hearing office.

(2)       An employer must comply with all the provisions of the Nonresident Workers Act, 3 CMC §§ 4411, et seq., including advertising.

(3)       An employee may change job class or wage rate by going through the transfer process, including the advertising of the position.

 

(c)       Consensual

(1)       Transfers are permitted during the contract period with the permission of all parties.

(2)       Before commencing the consensual transfer procedure, the employer should advertise the position in accordance with the Nonresident Workers Act, 3 CMC § 4432.

(3)       In order to effectuate a consensual transfer, the new employer must provide the designee of the Director of Labor with the following documentation:

(i)        Three copies of the consensual transfer form;

(ii)       A copy of the employee’s work and entry permit (i.e., the LIIDS card);

(iii)      A copy of the new employer’s business license;

(iv)      A two year work certification form (experience) if the employee is changing job categories;

(v)       A bond; and

(vi)      Any additional documentation deemed necessary by the Director of Labor or his or her designee.

(4)       After the Director’s designee receives the documentation enumerated above, he or she shall set an appointment for an interview with the current employer, the prospective employer, and the employee.

(5)       The consensual transfer must be approved by the Director of Labor or his or her designee prior to submission of the new application for a work and entry permit. The completed application must be submitted within 45 days from the date of approval by the Director of Labor or his or her designee. However, as soon as the consensual transfer is approved by the Director of Labor or his or her designee, the accepting employer becomes responsible for all costs associated with the non-resident worker, including but not limited to medical and repatriation costs.

(6)       For transfers during the initial contract period, the original employer may have his or her recruitment and hiring costs reimbursed by the prospective employer. The right of reimbursement belongs to the original employer; therefore the original employer may waive reimbursement during the initial contract period if he or she chooses.

 

(d)       After Expiration of a Contract

(1)       Employees may transfer from one employer to another after the expiration of a contract. Neither the prospective employer nor the employee needs to reimburse the original employer for recruitment or hiring costs.

(2)       An employee has 45 days from the date of expiration of a contract to find a new employer. The 45 days runs from the date of expiration of the previous contract to the date of submission of a completed application. An application that is facially deficient upon review by a member of the processing staff will not be accepted. If an application is accepted and then is discovered to have deficiencies, the employer will have 10 days to rectify the deficiencies. Failure to correct the deficiencies within the prescribed period will result in rejection of the application. That application can only be resubmitted or a new application with a different employer processed if the initial 45 day period has not yet run.

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

Commission Comment: The first paragraph was not designated. The Commission designated it subsection (a).

 

The Alien Labor Rules and Regulations, codified at NMIAC subchapter 80-20.1, were substantially revised in 2004. See 26 Com. Reg. 22866 (July 26, 2004); 26 Com. Reg. 22676 (June 24, 2004). Subsection (a) cites a provision of the Alien Labor Rules and Regulations that no longer exists.

 

§ 80-20.3-120             Hiring Workers Who Have an Authorization to Seek a Temporary Employer

 

An employee who is authorized to seek a temporary employer pursuant to the filing of a labor complaint may work for any bona fide employer whether or not that employee is replacing another worker who has exited the CNMI.

 

History: Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

§ 80-20.3-125             Pending Applications

 

For purposes of § 6 of Public Law 11-6 [3 CMC § 4605], an application is “pending” on the date a job vacancy announcement (JVA) is submitted to the Department for approval to advertise, as evidenced by the “received” stamp on the face of the document, not on the date of certification on the back of the JVA.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 20 Com. Reg. 16260 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15970 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 


SUBCHAPTER 80-20.4

SECURITY GUARD, MANPOWER COMPANIES AND SERVICE PROVIDERS RULES AND REGULATIONS

 


Part 001          General Provisions

[Reserved.]

 

Part 100          Security Guard, Manpower Companies and Service Providers Requirements

§ 80-20.4-101             Employees from Outside CNMI Prohibited

 

§ 80-20.4-105             Screening Required

§ 80-20.4-110             Companies Unfit to Hire Nonresident Workers

§ 80-20.4-115             Revocation of Business License Hearing

§ 80-20.4-120             Companies Fit to Hire Nonresident Workers; Requirements


 

Subchapter Authority: 3 CMC § 4424(a)(1)              and (a)(6).

 

Subchapter History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998)            (effective for 120 days from June 16, 1998).

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754)        on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1.

 

In July 2004, the Department of Labor promulgated comprehensive amendments to the Alien Labor Rules and Regulations that included provisions regarding security guard and manpower hiring restrictions. See NMIAC 80-20.1, part 500.

 

Part 001 -       General Provisions

 

[Reserved.]

 

Part 100 -       Security Guard, Manpower Companies and Service Providers Requirements

 

§ 80-20.4-101             Employees from Outside CNMI Prohibited

 

Security guard and manpower companies and service providers providing help supply or manpower services cannot hire any employees (including replacements under Public Law 11-6 [3 CMC §§ 4601-4607]) from outside the CNMI.

 

History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998) (effective for 120 days from June 16, 1998).

 

Commission Comment: The Commission created the section titles in part 100.

 

The October 1998 notice of adoption changed “service providers” to “service providers providing help supply or manpower services” where ever the phrase appeared in this subchapter.

 

§ 80-20.4-105             Screening Required

 

All security guard and manpower companies and service providers providing help supply or manpower services must be screened pursuant to the memorandum of understanding between the Department of Labor and Immigration and the Department of Commerce prior to filing applications for renewal of employees or to have employees transferred to them. There shall be no waiver of the job vacancy announcement for any security guard, manpower, or service provider providing help supply or manpower services employees.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

Commission Comment: With respect to the reference to the Department of Labor and Immigration, see Executive Order 03-01 (effective May 9, 2003), the “Department of Labor and Immigration Reorganization Plan of 2003,” returning the immigration functions of the executive branch to the Office of the Attorney General and renaming the Department of Labor. See also the commission comment to NMIAC subchapter 80-20.1.

 

§ 80-20.4-110             Companies Unfit to Hire Nonresident Workers

 

If the security guard or manpower company or service provider providing help supply or manpower services is deemed unfit to hire nonresident employees by the Department of Commerce, then the employee shall either be allowed to transfer to a qualified second party employer (the one at which the employee was working), otherwise transfer pursuant to the regulations promulgated pursuant to Public Law 11-6 [NMIAC, title 80, subchapter 20.3], or be repatriated at the expense of the security guard or manpower company or service provider providing help supply or manpower services.

 

History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998)   (effective for 120 days from June 16, 1998).

 

§ 80-20.4-115             Revocation of Business License Hearing

 

If the security guard or manpower company or service provider providing help supply or manpower services is deemed unfit to hire nonresident employees by the Department of Commerce, the Department of Labor and Immigration will request that the Department of Commerce hold a hearing to determine whether the employer’s business license should be revoked.

 

History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998) (effective for 120 days from June 16, 1998).

 

Commission Comment: With respect to the reference to the Department of Labor and Immigration, see Executive Order 03-01 (effective May 9, 2003), the “Department of Labor and Immigration Reorganization Plan of 2003,” returning the immigration functions of the executive branch to the Office of the Attorney General and renaming the Department of Labor. See also the commission comment to NMIAC subchapter 80-20.1.

 

§ 80-20.4-120             Companies Fit to Hire Nonresident Workers; Requirements

 

(a)       If the security guard or manpower company or service provider providing help supply or manpower services is deemed fit to hire nonresident employees by the Department of Commerce, then the employer shall file the following:

(1)       A timely, complete labor application;

(2)       Time cards and canceled paycheck stubs (or signed receipts for cash) for the entire period (not to exceed one year) that the employee worked for the employer;

(3)       An affidavit signed by both the employer and employee affirming that the employee did not pay for the processing costs, fees, or health screening, and that he or she got paid by the employer for the last year or whatever period the employee worked for that employer; and

(4)       A cash bond or standby letter of credit in the amount of three months wages and one-way airfare to the employee’s place of origin and $3,000 for potential medical expenses or a bond for $3,000 in potential medical expenses.

 

(b)       Failure to provide any of the above (given the usual 10 days to correct deficiencies) will result in denial of the application.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 20 Com. Reg. 16261 (Oct. 15, 1998); Emergency and Proposed 20 Com. Reg. 15978 (July 15, 1998) (effective for 120 days from June 16, 1998).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a)   and (b).

 

The October 1998 notice of adoption changed the proposed language of subsection (a)(4).

 


SUBCHAPTER 80-20.5

LIMITED IMMUNITY FOR ILLEGAL ALIENS RULES AND REGULATIONS

 

Subchapter Authority: 3 CMC § 4507.

 

Subchapter History: Emergency and Proposed 20 Com. Reg. 16278 (Nov. 15, 1998)   (effective for 120 days from Nov. 13, 1998).*

 

*A notice of adoption for the proposed Limited Immunity for Illegal Aliens Rules and Regulations was never published.

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1.

 

PL 11-33 (effective Sept. 2, 1998), codified at 3 CMC §§ 4501-4507, granted limited immunity to qualified illegal aliens, as defined by the act, present in the Commonwealth on September 2, 1998, who voluntarily reported themselves to the Department of Labor and Immigration (DOLI) (now the Department of Labor) within six months of September 2, 1998. See 3 CMC § 4502. 3 CMC § 4507 directs DOLI to promulgate rules and regulations to implement the act.

 

DOLI promulgated emergency regulations implementing PL 11-33 effective November 13, 1998. The regulations remained in effect for 120 days pursuant to the Administrative Procedure Act, 1 CMC §§ 9101, et seq. A notice of permanent adoption was never published.

 

[Reserved for future regulations pursuant to PL 11-33.]

 


SUBCHAPTER 80-20.6         

SPECIAL CIRCUMSTANCE TEMPORARY WORK AUTHORIZATIONS REGULATIONS

 


Part 001          General Provisions

[Reserved.]

 

Part 100          Issuance of Special Circumstance Temporary Work Authorizations

§ 80-20.6-101             Introduction

§ 80-20.6-105            Request of Federal Enforcement Agency

§ 80-20.6-110            Request of Commonwealth Enforcement Agency

§ 80-20.6-115             Nonresident Worker Pursuing Labor Claim through Private Lawsuit

§ 80-20.6-120             Temporary Work Authorization

§ 80-20.6-125            Renewal of Temporary Work Authorization

§ 80-20.6-130             Form of Request

§ 80-20.6-135             Confidentiality of Information

§ 80-20.6-140             Employer Responsibility

§ 80-20.6-145             No Right to Remain in the Commonwealth

§ 80-20.6-150             Entry Permit Not Modified


 

Subchapter Authority: 3 CMC § 4424(a)(1).

 

Subchapter History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1.

 

On September 23, 2004, the Secretary of Labor issued a public notice that requires alien workers seeking memorandums for temporary work authorizations pursuant to this subchapter to present an original letter or certified copy from the requesting federal or local agency. See 26 Com. Reg. 22957 (Sept. 24, 2004).

 

Part 001 -       General Provisions

 

[Reserved.]

 

Part 100 -       Issuance of Special Circumstance Temporary Work Authorizations

 

§ 80-20.6-101             Introduction

 

In addition to other circumstances described by statute or regulation, the Director of Labor or his designee may issue a memorandum authorizing a nonresident who is within the Commonwealth to seek temporary employment under the circumstances in this part.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

Commission Comment: The Commission created the section titles in part 100.

 

§ 80-20.6-105             Request of Federal Enforcement Agency

 

Upon a request by any federal enforcement agency including but not limited to the National Labor Relations Board, Equal Employment Opportunity Commission, U.S. Department of Labor and U.S. Department of Justice.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-110             Request of Commonwealth Enforcement Agency

 

Upon a request by any Commonwealth enforcement agency including but not limited to the Department of Public Safety, Office of the Attorney General, the Division of Immigration, or the Office of the Governor.

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-115             Nonresident Worker Pursuing Labor Claim through Private Lawsuit

 

A memorandum may be issued to a nonresident worker seeking relief through private lawsuits involving labor claims upon presentation of a letter from the attorney of record identifying the worker as a party in a pending law suit and identifying the court in which the case is pending and the case number of the

court action.

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-120             Temporary Work Authorization

 

The memorandum shall permit the person to seek temporary employment while within the Commonwealth. Upon securing employment the person must present him or herself to the Department of Labor for issuance of a temporary work authorization (TWA). The TWA shall be valid for a period not to exceed 90 days and shall be renewable every 90 days until the justification for the request has been accomplished. The Department of Labor may require that the applicant meet the usual application requirements set forth by statute, regulation or Department policy for a TWA (such as the appropriate health certificate, etc.) before approving the application. The Director of Labor or his designee may waive any application requirements deemed to be inappropriate under the circumstances of the application or that would defeat the purpose for the person’s continued presence in the Commonwealth.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-125             Renewal of Temporary Work Authorization

 

At the time of renewal of a TWA issued under this subchapter the requesting agency or attorney shall certify to the Department of Labor that the need continues to exist for the person to remain in the Commonwealth.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-130             Form of Request

 

The request for a memorandum shall be in writing and shall contain the following information:

 

(a)       The name, date of birth, nationality and entry permit and passport number of the person for whom the memorandum is requested;

 

(b)       The purpose for the person’s continuing presence in the Commonwealth;

 

(c)       The name and business address of the requesting agency or attorney;

 

(d)       A statement of the anticipated length of time the nonresident will remain in the Commonwealth or of the anticipated date when the person’s presence will no longer be necessary;

 

(e)       An acknowledgment that the requesting agency or attorney is required to notify the Department of Labor and Division of Immigration Services within seven days following the conclusion of the proceedings or other reason justifying the nonresident’s presence in the Commonwealth.

 

Modified, 1 CMC § 3806(e), (g).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

Commission Comment: In subsection (e), the Commission corrected the spelling of “acknowledgment.”

 

§ 80-20.6-135             Confidentiality of Information

 

Information received by the Department of Labor in connection with the request for memorandum and any subsequently received documents shall be confidential and shall be subject to release only to the Director of Labor or his designee, the person or agency requesting the memorandum or TWA, a law enforcement officer including an officer of the CNMI Immigration Service, or upon court order.

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-140             Employer Responsibility

 

The employer shall assume all responsibilities concerning the temporary worker as if the employer had initially hired the person as a full-time nonresident worker from within the Commonwealth except that the TWA employer shall not be liable for the purchase of a repatriation airline ticket. Nothing in the regulations in this subchapter shall exempt an employer from the other requirements of the Nonresident Workers Act or the Alien Labor Rules and Regulations [NMIAC, title 80, subchapter 20.1].

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-145             No Right to Remain in the Commonwealth

 

A person receiving relief under the regulations in this subchapter does not acquire any vested right to continued employment in the Commonwealth or the right to remain within the Commonwealth or to transfer to another employer when the justification for the issuance of the TWA has ended. An employer seeking to hire a worker previously employed under a TWA pursuant to this regulation may do so only after complying in full with the laws and regulations regarding the initial hiring of nonresident workers.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).

 

§ 80-20.6-150             Entry Permit Not Modified

 

Temporary work authorization allowed pursuant to the regulations in this subchapter does not modify the person’s entry permit nor shall the TWA be deemed to be a “nonresident worker certificate” as that term is used in the Commonwealth Entry and Deportation Act, 3 CMC §§ 4301, et seq., or the Nonresident Workers Act, 3 CMC §§ 4411, et seq., or any other statutes, or regulations promulgated by the Secretary of Labor pursuant to 3 CMC § 4424(a)(1).

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 26 Com. Reg. 22579 (May 24, 2004); Proposed 26 Com. Reg. 21643 (Jan. 22, 2004).


SUBCHAPTER 80-20.7         

RECRUITMENT OF ALIEN WORKERS REGULATIONS


Part 001 -       General Provisions

§ 80-20.7-001             Introduction

§ 80-20.7-005             Definitions

 

Part 100 -       Recruitment Procedures and Penalties

§ 80-20.7-101             Proof Required from Overseas Recruiters

 

§ 80-20.7-105            Registration with Department of Labor

§ 80-20.7-110             Employer’s Role in Local Recruiting Activities

§ 80-20.7-115            Unlawful Acts and Penalties

§ 80-20.7-120            Territorial Applicability


 

Subchapter Authority: 3 CMC §§ 4421 and 4424(a)(1).

 

Subchapter History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)                applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the Department of Labor, see the general Commission comments to NMIAC subchapters 80-10.1 and 80-20.1.

 

In January 2007, the Department of Labor adopted regulations regarding the recruitment of alien workers as codified in this subchapter. These regulations are intended to “restrict practices that lead to violations of labor and immigration laws” and “recognize lawful recruiting practices while eliminating opportunities for economic coercion of alien workers.” 27 Com. Reg. 25219 (Nov. 25, 2005).

 

Part 001 -       General Provisions

 

§ 80-20.7-001             Introduction

 

An employer in the Commonwealth of the Northern Mariana Islands may recruit alien workers from abroad through a recruiter or recruiting agency subject to the conditions stated in this subchapter and as otherwise provided by law. Where the Commonwealth has entered into an agreement, memorandum of understanding or similar protocol with another country regarding the recruiting of alien workers, all hiring must be done in conformity with said protocol.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

§ 80-20.7-005             Definitions

 

(a)       “Kickback” means any payment received by an employer in exchange for giving employment. The term does not include the customary fees paid by a prospective employee to a recruiter in exchange for the recruiter’s services in attempting to secure or securing employment for the prospective employee as long as the recruiter does not make or offer payment to the employer or his agent for providing the job. The term also includes any person’s collection or attempt to collect money or other consideration from an alien worker in exchange for an offer of employment or renewal of employment if that person is not a recruiter. Payment of a “finder’s fee” to an employer is a “kickback.”

 

(b)       “Recruit” means to engage in an act or acts intended to result in the employment of a prospective employee by an employer.

 

(c)       “Recruiter” means an individual, agent or business that engages, for a fee, in activities intended to place a worker with an employer at the request of the employer, or that engages in activities intended to find an employer for a worker at the request of the worker. To be considered a “recruiter” under this subchapter, it is not necessary that the employee becomes employed by the employer or that an employment contract be approved by the Department of Labor. The term includes a representative of a recruiter or recruiting business whose principal place of operations is within or without the Commonwealth. It is not required that the fee or any portion thereof be paid within the Commonwealth or remitted to a person or entity in the Commonwealth.

 

(d)       “Sponsorship” means an arrangement where an application is approved for a worker to perform labor or services for a specific employer, but the worker does not perform according to the contract due to the statements or actions of the employer or by mutual agreement between the worker and the employer. It does not include situations where no work is provided to an employee due to reduction in business activity or other legitimate reason and the Department of Labor has been notified of the circumstances by the employer or employee.

 

Modified, 1 CMC § 3806(d), (g).

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

Commission Comment: The Commission changed “a alien” to “an alien” in subsection (a) to correct a manifest error.

 

Part 100 -       Recruitment Procedures and Penalties

 

§ 80-20.7-101             Proof Required from Overseas Recruiters

 

Overseas recruiters shall, upon request by the Department, provide proof that they are licensed to perform as a recruiter in their home country.

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

§ 80-20.7-105             Registration with Department of Labor

 

Local representatives of domestic and overseas recruiters must register with the Department of Labor, Processing Section and must provide the following information:

 

(a)       The name, local business address, map to the business location, and telephone number of the recruiter.

 

(b)       The name, address, telephone number, and contact person of an overseas recruiter represented by the recruiter within the Commonwealth.

 

(c)       A copy of the recruiter’s CNMI business license.

 

(d)       A recruiter shall provide to the Department of Labor any agreement between the recruiter and an alien worker or between the recruiter and an employer.

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

§ 80-20.7-110             Employer’s Role in Local Recruiting Activities

 

(a)       The Department of Labor recognizes that lawful recruiting benefits workers and employers alike. However, the employer is expected to maintain a strict position of neutrality regarding the employee-recruiter relationship.

 

(b)       Therefore, an employer may not:

(1)       Condition the worker’s receipt of the worker’s copy of the contract or LIIDS card, or hold onto the worker’s passport or travel documents, paycheck or other personal property as a condition of the worker complying with any obligation to the recruiter;

(2)       Directly or indirectly collect any money from a worker on behalf of any recruiter;

(3)       Condition renewal of an employment contract upon the worker’s fulfillment of an obligation to a recruiter.

 

(c)       An employer may:

(1)       Allow business premises to be used for meetings between workers and recruiters;

(2)       Deliver mail or messages between recruiters and workers.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

Commission Comment: The Commission designated subsections (a), (b) and (c), which were not designated in the original. The Commission changed the semi-colon in subsection (c)(2)          to a period.

 

§ 80-20.7-115             Unlawful Acts and Penalties

 

(a)       An employer, prospective employer, or third person shall not receive a kickback from any person in exchange for the employment or offer of employment to a prospective employee.

 

(b)       An alien worker shall not receive compensation or consideration of any kind in exchange for recruiting or promising employment or renewal of employment to another person, except that an alien worker who is lawfully employed by a recruiting agency may engage in recruiting provided it is done in the ordinary course of business and provided the worker does not directly benefit from the recruiting efforts. An alien worker may make introductions or recommend a person for employment provided there is no compensation or consideration involved. A manager, line leader, supervisor or employee may not receive any consideration from a worker or person acting on his or her behalf for a recommendation regarding employment or renewal.

 

(c)       A person or agency shall not engage in recruiting as a principal or agent unless licensed to do so by the Department of Commerce, and the Department of Labor may seek injunctive or other relief against an unlicensed recruiter, including banning the recruiter from employing alien workers or seeking an administrative award requiring reimbursement to an alien worker for any funds paid.

 

(d)       The Department of Labor may seek revocation of the employment permit of an alien worker who violates the regulations in this subchapter by engaging in unlawful recruiting.

 

(e)       Disputes arising between a recruiter and alien worker or between a recruiter and employer arising from recruiting activities are not within the jurisdiction of the Department of Labor. However, claims alleging unlawful acts committed by recruiters, employers or third persons (such as kickbacks or unlawful recruiting) are within the jurisdiction of the Department.

 

(f)        Fees charged by a recruiter for all recruiting services and related duties performed in the CNMI may not exceed 12.5% of the base rate of the contract (calculated at 40 hours per week multiplied by the hourly wage rate multiplied by the number of weeks in the contract period, and does not include actual or projected overtime compensation).

 

(g)       Sponsorship arrangements are strictly prohibited.

 

(h)       A worker, recruiter and/or employer engaging in unlawful recruiting or a sponsorship is subject to the penalties in the Nonresident Workers Act, 3 CMC §§ 4411 et seq. and the penalties set forth in this regulation [§ 80-20.7-115].

 

Modified, 1 CMC § 3806(d), (f), (g).

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).

 

Commission Comment: The Commission changed “a alien” to “an alien” in subsections (b) and (d) to correct manifest errors.

 

§ 80-20.7-120             Territorial Applicability

 

(a)       A person is in violation of this subchapter for his or her own conduct or the conduct of another for which the person is legally accountable, if

(1)       The violation or any act toward commission of the violation occurs within the Commonwealth;

(2)       Any act done outside the Commonwealth results in an act which has an impact within the Commonwealth.

 

(b)       Any person, whether or not a citizen or resident of the Commonwealth, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, and, if not an individual, its personal representative, to the jurisdiction of the Department of Labor.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 29 Com. Reg. 26420 (Jan. 16, 2007); Proposed 27 Com. Reg. 25219 (Nov. 25, 2005).


SUBCHAPTER 80-20.8         

REFUGEE EMPLOYMENT REGULATIONS

 

Chapter Authority: 3 CMC § 4421; 3 CMC § 4424(a)(1); Executive Order 94-3 § 301.

 

Chapter History: Proposed 27 Com. Reg. 23827 (Jan. 17, 2005).*

 

As of December 2005, a notice of adoption had not been published.

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the Department of Labor, see the general commission comments to NMIAC subchapters 80-10.1 and 80-20.1.

 

Article 17 of the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223 (entered into force November 1, 1968) is applicable to the Commonwealth pursuant to section 102 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. Article 17 establishes the terms of employment for persons with refugee status under the treaty. 3 CMC § 4424(a) authorizes the Secretary of Labor to promulgate regulations pertaining to the employment of nonresident workers in the Commonwealth.

 

[Reserved for Refugee Employment Regulations.]

 


 

SUBCHAPTER 80-20.9

ALIEN LABOR RULES AND REGULATIONS

 

Subchapter Authority: 1 CMC § 2454; 3 CMC § 4424(a)(1); Executive Order 94-3 § 301.

Commission Comment: The Department of Commerce and Labor first issued the 1988 Alien Labor Rules and Regulations that were initially codified at Subchapter 80-20.1. 10 Com. Reg. 5510 (Apr. 15, 1988). After Executive Order 94-3 created the Department of Labor and Immigration, the new Department continued to amend the Alien Labor Rules and Regulations. In 2003, the newly created Department of Labor began to promulgate amendments to the subchapter.

 

The final amendments to this subchapter were adopted in July of 2004. 26 Com. Reg. 22866 (July 26, 2004). In 2008, the Department repealed this chapter and replaced it with a new Subchapter 80-20.1, entitled Employment Rules and Regulations. 30 Com. Reg. 28027 (Jan. 22, 2008). The Commission moved the former Alien Labor Rules and Regulations to Subchapter 80-20.9 for historical purposes.

Title VII of US Public Law 110-229, the Consolidated Natural Resources Act of 2008 (CRNA), enacted on May 8, 2008, extended the Immigration and Nationality Act (INA) and other provisions of United States immigration law to the Commonwealth of the Northern Mariana Islands. The CNRA provides for a transition period before full application of the INA to the Commonwealth, which had been responsible for its own immigration policies prior to the CNRA. The transition period started November 28, 2009 and is scheduled to end on December 31, 2014. Beginning November 28, 2009, the Commonwealth no longer retained jurisdiction over immigration matters in the Commonwealth of the Northern Mariana Islands.

 

On March 22, 2010, CNMI Public Law 17-1, the Immigration Conformity Act, became law. Section 12 of the Act stated that the Act shall be retroactive to November 28, 2009 except as otherwise provided by law. The Act repealed immigration responsibilities of the Commonwealth found in the Commonwealth statutory code and amended certain provisions of the code addressing labor in the Commonwealth.

 

As the CNMI no longer has the authority to enact its own alien labor policies, the Commission removed the repealed text of Subchapter 80-20.9 from the Code. The final version of this subchapter is available at 26 Com. Reg. 22866 (July 26, 2004).

 

[Repealed.]


CHAPTER 80-30

GARMENT INDUSTRY

 

SUBCHAPTER 80-30.1         

REALLOCATION OF NON-RESIDENT WORKERS IN THE GARMENT INDUSTRY RULES AND REGULATIONS

 


Part 001          General Provisions

§ 80-30.1-001             Introduction

 

Part 100          Mechanism for the Reallocation of Non-resident Garment Workers

§ 80-30.1-101             Reconciliation with DOL Records

§ 80-30.1-105             Hiring of Garment Workers Residing in the Commonwealth

§ 80-30.1-110             Replacement Employees

§ 80-30.1-115             Workers Not to Be Assessed Fees or Costs

§ 80-30.1-120             Reporting of Numbers of Employees

§ 80-30.1-125             Biannual Review of Nonresident Garment Worker Count

§ 80-30.1-130             Monitoring of Number of Nonresident Garment Workers


 

Subchapter Authority: 3 CMC § 4312(d); Executive Order 03-01; 4 CMC § 5708.

 

Subchapter History: Amdts Emergency and Proposed 26 Com. Reg. 22622 (June 24, 2004) (effective for 120 days from June 11, 2004);* Amdts Emergency and Proposed 26 Com. Reg. 21789 (Feb. 23, 2004) (effective for 120 days from Feb. 10, 2004);* Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003)  (effective for 120 days from Sept. 19, 2003).

 

*As of December 2004, notices of permanent adoption for the February 2004 and June 2004 amendments had not been published.

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the commission comment to NMIAC subchapters 80-10.1 and 80-20.1. See also NMIAC subchapter 5-40.1 for the history of immigration authority in the Commonwealth.

 

PL 10-9 (effective May 28, 1996), the “Garment Industry Moratorium Act of 1996,” is codified as amended at 4 CMC §§ 5701-5711. The act sets specific limits on the issuance of business licenses for garment manufacturing and non-resident workers employed in the garment industry. See also the general commission comment to NMIAC subchapter 20-60.1.

 

PL 11-76 § 2 (effective Mar. 26, 1999) codified as amended at 4 CMC § 5708, sets a cap on the nonresident alien workers employed in the garment industry. PL 12-11 (effective Aug. 3, 2000) amends PL 11-76 § 2 to allow the Secretary of Labor to establish by regulation a mechanism for the reallocation of non-resident alien workers among garment manufacturers based on need.

 

The June 2004 emergency and proposed amendments repealed this subchapter in its entirety and proposed new Regulations to Establish a Garment Labor Pool. See 26 Com. Reg. 22622 (June 24, 2004) (effective for 120 days from June 11, 2004). As of December 2004, a notice of permanent adoption had not been published and, therefore, the regulations adopted in January 2004 remain in effect.

 

Part 001 -       General Provisions

 

§ 80-30.1-001             Introduction

 

The Attorney General’s Office (AGO) and the Department of Labor (DOL) have determined that the dynamics of the garment industry have changed since the enactment of PL 11-76 in 1999. Some employers have ceased operations while others desire to expand. Many employers have demonstrated interest in modifying the quotas established in Schedule A to accommodate changes in their economic circumstances. The suspension of the quotas established in the Moratorium on Nonresident Alien Worker Hiring will allow the employment market to stabilize based on the actual employee requirements of the employers rather than an estimate of the number of workers made by the AGO and DOL. However, it is important that the Secretary retain some control over the reallocation of the workforce among employers to adhere to the statutory requirement that the total number of workers in the garment industry not exceed 15,727 nonresident workers, and to maintain the quality of the CNMI as a workplace for both employers and employees. The number of recent mergers, acquisitions and bankruptcies of manufacturers prompts the AGO and DOL to take this emergency action to provide a mechanism for the reallocation of nonresident workers among manufacturers. Further, despite the absence of regulations as required under PL 12-1l, AGO and DOL are aware that workers were previously reallocated to only certain factories. Therefore, it is necessary to immediately enact regulations providing all manufacturers access to such reallocations. As required under PL 11-6, it is the intention of AGO and DOL to make certain that any nonresident worker currently present in the Commonwealth is lawfully employed prior to the entry of new workers from abroad. The following regulations are adopted to implement the authority of the Secretary of Labor to “establish a mechanism for the reallocation of non-resident workers among employers based on need.” PL 12-11 (4 CMC § 5708).

 

History: Amdts Emergency and Proposed 26 Com. Reg. 21789 (Feb. 23, 2004)             (effective for 120 days from Feb. 10, 2004); Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The February 2004 emergency and proposed amendments contained an additional introduction section. As of December 2004, a notice of permanent adoption had not been published and therefore, the Commission has not incorporated the proposed changes.

 

The June 2004 emergency and proposed amendments repealed this subchapter in its entirety and proposed new Regulations to Establish a Garment Labor Pool. See 26 Com. Reg. 22622 (June 24, 2004) (effective for 120 days from June 11, 2004). As of December 2004, a notice of permanent adoption had not been published and, therefore, the regulations adopted in January 2004 remain in effect.

 

Part 100 -       Mechanism for the Reallocation of Non-resident Garment Workers

 

§ 80-30.1-101             Reconciliation with DOL Records

 

Once an employer in the garment industry has reconciled its records of the number of nonresident workers in its employ with those of the Department of Labor, the employer may begin hiring additional workers pursuant to this subchapter.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The Commission created the section title.

 

§ 80-30.1-105             Hiring of Garment Workers Residing in the Commonwealth

 

An employer may hire workers whom presently reside within the Commonwealth unrestricted by the allocations specified in the Moratorium on Nonresident Alien Worker Hiring, Schedule A of 3 CMC §§ 4601, et seq.

 

(a)       Employers within the garment industry may acquire these workers subject to the following conditions:

(1)       The worker must be an individual who has a valid CNMI labor permit and must be presently within the Commonwealth; or

(2)       The worker must possess a memorandum or administrative order from the Department allowing them to seek permanent employment;

(3)       The worker is eligible for employment by any qualifying employer in any job category for which they are qualified regardless of the specific job category indicated on their entry permit or LIIDS data;

(4)       Payment of the fee for the application for a labor identification certificate and immigration entry permit as established by the Department, plus a non-refundable, nontransferable fee of $50.00 to offset the cost of increased administration. Fees previously paid to the Department with the expectation of securing a worker from outside the CNMI may be transferred to an application made for an on-island worker pursuant to this subchapter or may be refunded by the Department if the off-island worker cannot be employed as a result of the operation of this subchapter;

(5)       Approval by the Department of an employer’s agreement and employment contract for each worker hired pursuant to this subchapter;

(6)       Advertising for the position is waived provided the worker will become employed within the same job classification except for trimmers, packers, security guards, maintenance workers, and office workers;

(7)       An employer who desires expedited processing of the documents required to employ a nonresident worker pursuant to this subchapter may receive expedited processing by paying an additional non-refundable fee of $150.00. “Expedited processing” means that after submission of all required documents by the employer, and the Department finding that all documents have been submitted all the application is otherwise complete, the Department shall prepare the labor permit within a period not to exceed fourteen days. However, the Director of Labor may, after giving notice to the prospective employer prior to payment of any expedited processing fee, inform the employer of a different time period if the demand for expedited processing exceeds the ability of the section to guarantee processing of the permits within the 14 day period.

 

(b)       Workers employed under a reallocation shall be considered to be “new” employees for purposes of the application and processing, and not an officially transferred employee for replacement purposes.

 

Modified, 1 CMC § 3806(d), (e), (f), (g).

 

History: Amdts Emergency and Proposed 26 Com. Reg. 21789 (Feb. 23, 2004) (effective for 120 days from Feb. 10, 2004); Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The February 2004 emergency and proposed amendments proposed to amend the opening paragraph and subsections (a)(1)  and (a)(7). As of December 2004, a notice of permanent adoption had not been published and, therefore, the Commission has not incorporated the proposed changes.

 

In subsections (a)(3) and (a)(6), the Commission replaced the final periods with semi-colons to ensure consistent punctuation.

 

The Commission created the section title.

 

§ 80-30.1-110             Replacement Employees

 

Replacement employees may be hired in conformity with existing laws, PL 11-6 as amended by PL 11-76 § 5, provided however that no replacement will be granted that would cause the total number of nonresident workers in the garment industry to exceed 15,727 as established in PL 11-76 § 6(a). After September 12, 2003, any employer showing available positions after completion of the fiduciary audit may replace those workers with off-island hires.

 

Modified, 1 CMC § 3806(g).

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The Commission inserted a comma after “September 12, 2003.” The Commission also created the section title.

 

On February 23, 2004, the Department of Labor and the Office of the Attorney General published emergency and proposed amendments that proposed to add a new section 4, entitled “Consensual, Expiration, or Administrative Order Transfers within the Garment Industry.” See 26 Com. Reg. 21789 (Feb. 23, 2004) (effective for 120 days from Feb. 10, 2004). As of December 2004, a notice of permanent adoption had not been published and, therefore, the Commission has not incorporated the proposed section.

 

§ 80-30.1-115             Workers Not to Be Assessed Fees or Costs

 

A nonresident worker may not be assessed any fee or cost of any kind by any person relating to a reallocation or transfer to the receiving employer. The attempt to collect or the collection of a fee or other consideration from a nonresident worker constitutes a violation of the Nonresident Workers Act and may subject the violator to the penalties therein. An employer may offer an incentive to an employee to accept employment if such incentive is included in the employer’s agreement and the approved employment contract.

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

§ 80-30.1-120             Reporting of Numbers of Employees

 

On June 1 and December 1 of each year each employer shall report to the Department of Labor the number of nonresident workers employed. Failure to submit the required report shall result in a sanction of one thousand dollars for each seven days the report is late. Failure to submit the report within fourteen days may result in a suspension of the processing of any of the employer’s labor-related documents by the Department plus the sanction until the report is filed with the Department.

 

Modified, 1 CMC § 3806(e).

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

§ 80-30.1-125             Biannual Review of Nonresident Garment Worker Count

 

Upon receipt of the reports required by § 80-30.1-120 which were submitted on June 1, 2004 and every six months thereafter, the Secretary of Labor and the Attorney General shall review the placement of nonresident workers in the garment industry to determine whether to reinstate a nonresident worker allocation system similar to that previously adopted in Schedule A of the Moratorium on Nonresident Alien Worker Hiring, 3 CMC §§ 4601, et seq.

 

Modified, 1 CMC § 3806(c), (e), (g).

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The Commission changed “an nonresident worker” to “a nonresident worker” to correct a manifest error.

 

§ 80-30.1-130             Monitoring of Number of Nonresident Garment Workers

 

The Division of Immigration, the Department of Labor and the LIIDS Section of the Office of the Governor shall monitor the number of workers in the garment industry no less than once every fourteen days to ensure that the total number of nonresident workers in the industry does not exceed 15,727. This monitoring may be accomplished in any manner that will give an accurate total of the number of workers.

 

History: Adopted 26 Com. Reg. 21713 (Jan. 22, 2004); Emergency and Proposed 25 Com. Reg. 21414 (Oct. 15, 2003) (effective for 120 days from Sept. 19, 2003).

 

Commission Comment: The Commission created the section title.

 


SUBCHAPTER 80-30.2

TRANSFER OF GARMENT MANUFACTURING BUSINESS LICENSES REGULATIONS (IMPLEMENTING PUBLIC LAW 14-82)

 


Part 001          General Provisions

§ 80-30.2-001             Applicability and Related Regulations

§ 80-30.2-005                         Definitions

 

Part 100          Administration

§ 80-30.2-101             Time Frame for Financial Assurance

§ 80-30.2-105             Replacement of Nonresident Workers

§ 80-30.2-110             Increase or Decrease in Nonresident Workers

§ 80-30.2-115             Partial Exemption from Alien Labor Rules and Regulations Section II (NMIAC Subchapter 80-20.1, Part 100)

§ 80-30.2-120             Repatriation Costs Secured

§ 80-30.2-125             Recovery of Cash Bond

§ 80-30.2-130             Demand for Payment

 

Part 200          Coordination with Business Licensing Regulations

§ 80-30.2-201             Issuance of Temporary License

§ 80-30.2-205             Fees

§ 80-30.2-210             Application Requirement

§ 80-30.2-215             Term of Transferred License

§ 80-30.2-220             License Prohibited


 

Subchapter Authority: 4 CMC § 5611(c) (as amended by PL 14-82 (effective August 2, 2005)).

 

Subchapter History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: Under the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant, Pub. L. No. 94-241, ' 301, 90 Stat. 263), the CNMI government retained nearly exclusive control over immigration. After the enactment of the Consolidated Natural Resources Act of 2008 (CNRA, Pub. L. No. 110-229, 122 Stat. 754) on May 8, 2008, federal immigration law became applicable to the CNMI beginning on November 28, 2009. Under CNRA ' 702(a), the CNRA made the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)) applicable to the CNMI. The CNRA further amended the Covenant to state that the “immigration laws,” as well as the amendments to the Covenant, “shall … supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth.” On March 22, 2010, the Governor of the CNMI signed P.L. 17-1 into law, which effectively removed all references to immigration and deportation functions from the Commonwealth Code, and on April 15, 2010, the Office of the Attorney General, Division of Immigration, repealed the Division of Immigration Rules and Regulations (NMIAC Title 5, Chapter 40). The CNMI Department of Labor’s regulations relating to the admission of aliens in this subchapter were not specifically repealed, and therefore, remain.

 

For a complete history of the authority of the Department of Labor, see the general commission comments to NMIAC subchapters 80-10.1 and 80-20.1. See also NMIAC subchapter 5-40.1 for the history of immigration authority in the Commonwealth.

 

PL 14-82 (effective Aug. 2, 2005)                amended 4 CMC § 5611(c) to allow the transfer of a business license within the garment industry under specified conditions. The act authorized the Department of Finance and the Department of Labor to promulgate regulations implementing its provisions.

 

Part 001 -       General Provisions

 

§ 80-30.2-001             Applicability and Related Regulations

 

The regulations in this subchapter apply only to businesses receiving a transfer business license for purposes of garment manufacturing pursuant to 4 CMC § 5611(c) as amended by PL 14-82. For purposes of reallocation of workers under 4 CMC § 5708, the procedures outlined in the Alien Labor Rules and Regulations § II.K [NMIAC § 80-20.1-155] regarding positions going into the garment pool due to a previous employer’s reduction in force shall apply. When making the initial request for an allocation of alien workers, a new employer to whom a business license for garment manufacturing has been granted is excused from the requirement of filing the statement of user fees paid in the previous year as required by Alien Labor Rules and Regulations § II.K.l.f.2 [NMIAC § 80-20.1-155(a)(6)(ii)]. This waiver shall apply until the new employer has filed user fees, at which time the regular requirements will resume.

 

Modified, 1 CMC § 3806(c), (d), (f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005)   (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-005             Definitions

 

(a)       “Applicant”: A garment manufacturer who has applied for a transferred business license for the purpose of garment manufacturing under PL 14-82.

 

(b)       “Transfer licensee”: A garment manufacturer who has been granted a transferred business license for the purpose of garment manufacturing by the Department of Finance (“DOF”).

 

(c)       “Financial assurance”:

(1)       The financial assurances required under PL 14-82 can be met by the following financial arrangements:

(i)        Establishment of a cash bond with the Department of Finance (“DOF”);

(ii)       Establishment of an irrevocable standby letter of credit with an FDIC insured bank equal to 100% of the aggregate cost of repatriation of the nonresident workers employed by the transferee license holder;

(iii)      Establishment of an irrevocable letter of credit with an FDIC insured bank or a cash bond with the DOF equal to 50% of the aggregate cost of repatriation of the nonresident workers employed by the transferee license holder and provision of personal guarantees from all corporate owners for the remainder of repatriation costs; or

(iv)      Provision of a performance bond with an insurance provider authorized by the United States Treasury equal to 100% of the aggregate cost of repatriation of the nonresident workers employed by the transferee license holder.

(2)       All financial assurances are to be in a written format approved by the Office of the Attorney General.

 

(d)       “Repatriation costs”: Repatriation costs shall be calculated based on the price quoted by a licensed travel agent within the Commonwealth of the Northern Mariana Islands (“Commonwealth”) equal to the current cost of one-way transportation between each worker’s original point of hire as specified in the employment contract and the location of the applicant’s business within the Commonwealth. It shall be the applicant’s responsibility to submit a letter on the letterhead of such a travel agent containing the quoted price to the Director of Labor (“DOL”) along with the financial assurance.

 

(e)       “Cash bond”: Deposit with the Commonwealth “DOF” funds equal to full cost of repatriation (or 50% if supplemented by personal guarantees). Funds can be drawn upon for use by DOF should transfer licensee fail to compensate the Commonwealth for repatriation costs after demand for payment.

 

(f)        “Performance bond”: Terms of the bond shall provide guarantee of performance by license holder for costs of repatriation of covered employees during one-year period from date of issuance should licensee fail to pay for repatriation upon demand for payment. Bond must be renewed annually on date of establishment.

 

(g)       “Irrevocable standby letter of credit”: Document issued by an FDIC insured bank stating that in the event the transfer licensee fails to comply with a court or administrative order demanding payment of repatriation costs, or a demand for payment of repatriation costs incurred by the Commonwealth, the bank will pay the claims of the Commonwealth within ten days of presentation of a demand for payment to bank.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: The original paragraphs of subsection (c)     were not designated. The Commission designated subsections (c)(1) and (c)(2). The Commission inserted quotation marks around terms defined.

 

Part 100 -       Administration

 

§ 80-30.2-101             Time Frame for Financial Assurance

 

Within fourteen days of receiving a written finding from the DOF that the applicant has satisfied the conditions set forth in 4 CMC § 5701(b)(2)-(3), the applicant employer shall provide the DOL with proof that it has posted a financial assurance equal to the aggregate cost of repatriation of the nonresident workers employed by the applicant.

 

Modified, 1 CMC § 3806(e).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: The Commission created the section titles in this part.

 

§ 80-30.2-105             Replacement of Nonresident Workers

 

In the event that a transfer licensee replaces one or more of its nonresident workers at the end of the contract period, or as a result of a consensual transfer, with a nonresident worker from a different point of hire, the transfer licensee shall deliver to DOL at the time it applies for a new employment permit proof that its financial assurance is sufficient to cover the difference in repatriation costs between the former and new worker. If the newly hired worker is from the same point of hire as the worker being replaced, no additional financial assurance needs to be provided to DOL.

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-110             Increase or Decrease in Nonresident Workers

 

If, at any time, a transfer licensee increases the number of nonresident workers it employs pursuant to lawful procedures set forth in Alien Labor Rules and Regulations Section II.K [NMIAC § 80-20.1-155], the transfer licensee shall provide proof that it has increased the value of the financial assurance to cover the repatriation costs of these additional employees at the time it submits the required applications to the Department of Labor Processing Section. If a transfer licensee lawfully decreases the number of nonresident workers it employs, the Department of Labor shall allow the transfer licensee to reduce the value of the financial assurance in an amount equal to the repatriation costs calculated for the terminated nonresident worker(s) upon written proof that said nonresident worker(s) have left the Commonwealth or entered into a one-year contract with another employer, and have not been replaced by the transfer licensee.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-115             Partial Exemption from Alien Labor Rules and Regulations Section II (NMIAC Subchapter 80-20.1, Part 100)

 

The financial assurance shall excuse the transfer licensee from its obligations under Alien Labor Rules and Regulations Section II.B.5 [NMIAC § 80-20.1-110(e)], only insofar as that provision requires the employer’s bond to cover repatriation costs. Transfer licensees shall otherwise be bound by the employer bonding obligations set forth in Section II [NMIAC subchapter 80-20.1, part 100].

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-120             Repatriation Costs Secured

 

The repatriation costs of all nonresident workers employed by a transfer licensee – whether they are transferred to the company of the transfer licensee from an existing company, or are new hires from on-island or off-island – shall be secured by a financial assurance described above in § 80-30.2-005(c).

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-125             Recovery of Cash Bond

 

(a)       A transfer licensee that has posted a cash bond as a financial assurance that lacks funds necessary to repatriate one or more of its nonresident workers may recover that portion of the financial assurance intended to cover the cost of repatriating the departing worker(s) by providing DOL and DOF written documentation demonstrating:

(1)       The identity and original point of hire of the departing nonresident worker(s);

(2)       That the applicant has fulfilled all of its contractual and other obligations to said departing worker(s); and

(3)       The amount previously provided to DOF to cover said workers)     repatriation costs.

 

(b)       Within ten days of receipt of satisfactory documentation, DOF shall return that portion of the assurance the applicant had provided on behalf of the specified worker(s).

 

Modified, 1 CMC § 3806(e), (f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: The original paragraphs were not designated. The Commission designated subsections (a) and (b).

 

§ 80-30.2-130             Demand for Payment

 

(a)       Within a reasonable time of determining that the Department of Labor has administrative jurisdiction over a complaint which may result in repatriation, the DOL or his designee may transmit a “notice of potential claim” to the bonding company, bank holding the letter of credit and/or personal guarantors that shall indicate the approximate number of potential claims for repatriation involved in the complaint. Upon receipt of a notice of potential claim the period for filing a claim shall be tolled.

 

(b)       If a transfer licensee is ordered to pay repatriation costs by a court or Administrative Hearing Officer, and fails to comply with the order, the DOL may transmit a “notice of claim” to the bonding company, bank holding the letter of credit, and/or personal guarantors.

 

(c)       Within ten days of receipt of a notice of claim, the bonding company, bank holding the letter of credit and/or personal guarantors shall make payment sufficient to satisfy the notice of claim.

 

(d)       In matters in which the transfer licensee’s obligations to repatriate are at issue, but the Department of Labor is not a party, such as an action arising under federal law, the employee may provide notice to the bonding company, bank holding the letter of credit, and/or personal guarantors using the procedures described above in subsections (a) through (c). The bonding company, bank holding the letter of credit and/or personal guarantors are under the same obligation to cover valid claims brought by the employee as they are to cover claims brought by the Department of Labor.

 

(e)       Should the Department of Labor incur any repatriation costs associated with nonresident workers of a transfer licensee in the absence of a court or administrative order, the DOL or his designee shall provide notification to the transfer licensee of the costs incurred and a demand for payment. The notice shall identify the specific employee and costs incurred and provide an opportunity to the transfer licensee to examine or contest the charges and/or liability. Determination as to the validity of the charges will be made by DOL after consideration of any information presented by transfer licensee. Uncontested charges shall be considered as valid claims against the licensee and shall be paid in full within thirty days of presentation to the licensee or within ten days after determination by DOL of contested claims. Failure to pay within time periods identified provides the DOL grounds to make claims against any and all financial assurances provided by the transfer licensee.

 

Modified, 1 CMC § 3806(c), (e), (f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Part 200 -       Coordination with Business Licensing Regulations

 

§ 80-30.2-201             Issuance of Temporary License

 

(a)       21-Day Temporary License. If the applicant cannot provide the requisite cash bond, irrevocable letter of credit or other form of financial assurance prior to the issuance of a transfer license because the company cannot hire employees without a business license, the Department of Finance may issue a temporary license valid for a period of 21 days upon payment of the temporary license fee. An applicant for a temporary license shall be granted such license no more than one time per applicant.

 

(b)       Expiration. The 21-day temporary license shall expire 21 calendar days after issuance and the licensee shall have no further right to conduct business under the temporary license. An applicant shall apply for the transfer license pursuant to PL 14-82, and submit proof of financial assurance within the 21-day temporary license period. If the applicant fails to timely apply for the transfer license within the 21-day period and submit all required supporting documentation, the license shall be denied, and such denial shall constitute final agency action.

 

(c)       Limitation. PL 14-82 has added to 4 CMC § 5611(c)(4). This section requires compliance with 4 CMC § 5701(b)(2)-(3). The 21-day temporary license referred to in subsection (a) shall be issued only for the purpose of posting a cash bond, irrevocable letter of credit or other form of financial assurance required by 4 CMC § 5611(c)(4)(B). The 21-day temporary license shall not be issued for other purposes. An example of purposes for which the temporary license may not be issued are those listed in 4 CMC § 5701(b)(2)-(3).

 

Modified, 1 CMC § 3806(c), (g).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: In subsection (a), the Commission deleted the repeated phrase “payment of the” to correct a manifest error.

 

§ 80-30.2-205             Fees

 

An applicant for the transfer of a business license for the purpose of garment manufacturing, that otherwise meets all other requirements of PL 14-82, shall be subject to the following fees:

 

(a)       21-Day Temporary License. If the applicant is applying for a 21-day temporary license, the applicant shall pay a $15 processing fee for the temporary license. Prior to expiration of the 21-day temporary license, and proof of meeting all financial assurance requirements, the applicant will be entitled to apply for the license specified in 4 CMC § 5611(c) as amended by PL 14-82 based upon the fee schedule contained in subsections (b) or (c) of this section, as applicable.

 

(b)       Transferred Business License Revoked or Ceased Operations. If the license of the prior licensee was revoked or the garment manufacturer has ceased operations and the term of the prior licensee’s license has not expired, the applicant for the initial transfer license shall pay an amendment fee in accordance with § 1201 of the Business License Regulations, Commonwealth Register, Vol. 21, No. 10, October 15, 1999 [NMIAC § 70-40.1-145].

 

(c)       Transferred Business License Not Renewed or Lapsed. If the license of the prior licensee was not renewed or otherwise was permitted to lapse, the applicant for the transfer of the initial transfer license shall be subject to the fees as provided in 4 CMC § 5611(d).

 

(d)       Yearly Renewal. Once the applicant has received a transferred business license, yearly renewals shall be subject to the fees as provided in 4 CMC § 5611(d).

 

Modified, 1 CMC § 3806(c), (f).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-210             Application Requirement

 

The applicant for the transfer of a business license for the purpose of garment manufacturing shall submit an application that meets the requirements of § 401 of the Business License Regulations [NMIAC § 70-40.1-105]. Furthermore, the applicant must meet all other conditions of the Business Licensing Regulations, as applicable.

 

Modified, 1 CMC § 3806(c).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

§ 80-30.2-215             Term of Transferred License

 

(a)       If the license for garment manufacturing was revoked or the garment manufacturer has ceased operations and the term of that license being transferred has not expired, the license issued to the applicant shall be valid through the term of the license that is being transferred. Renewal of the license shall be in accordance with section 601 of the Business License Regulations [NMIAC § 70-40.1-115].

 

(b)       If a license for garment manufacturing lapsed or was not renewed, the license shall be issued for a period of one year.

Example:

(1)       Corporation “A” was the holder of a business license for garment manufacturing valid for the period January 2, 2005 through January 1, 2006. It ceased operations on May 10, 2005. Corporation “B” is applying for the transfer of Corporation “A’s” business license. Provided that Corporation “B” meets all requirements of PL 14-82 and is able to obtain the transferred license, the license as transferred shall expire on January 1, 2006.

(2)       Corporation “C” was the holder of a business license for garment manufacturing that was valid for the period January 3, 2005 through January 2, 2006. Corporation “C” had its business license revoked on July 7, 2005. On August 20, 2005, Corporation “D” applies for the transfer of that license. Corporation “D” meets all requirements of PL 14-82 and is able to obtain the transferred license. The license is issued on August 25, 2005 and will expire after one year, or on August 24, 2006.

 

Modified, 1 CMC § 3806(c), (f), (g).

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005) (effective for 120 days from Oct. 17, 2005).

 

Commission Comment: In subsection (b)(1), the Commission changed “corporations A’s” to “corporation A’s” to correct a manifest error.

 

§ 80-30.2-220             License Prohibited

 

Under no circumstances shall the DOF allow the transfer of a license that had, prior to January 1, 2005, been revoked; not renewed; or otherwise permitted to lapse; or where the garment manufacturer ceased operations.

 

History: Adopted 27 Com. Reg. 25399 (Dec. 30, 2005); Emergency and Proposed 27 Com. Reg. 25011 (Oct. 24, 2005)   (effective for 120 days from Oct. 17, 2005).

 


TITLE 80    

DEPARTMENT OF LABOR and the OFFICE OF THE ATTORNEY GENERAL

CHAPTER 80-40

ETHICS CODE FOR THE TRANSLATORS AND INTERPRETERS IN LABOR, IMMIGRATION AND REFUGEE PROTECTION MATTERS

 


Part 001          General Provisions

§ 80-40-001    Applicability

 

Part 100          Canons of Ethics

§ 80-40-101    Accuracy and Completeness

§ 80-40-105    Representation of Qualifications

§ 80-40-110    Impartiality and Avoidance of Conflict of Interest

§ 80-40-115    Professional Demeanor

§ 80-40-120    Confidentiality

§ 80-40-125    Restriction of Public Comment

§ 80-40-130    Scope of Practice

§ 80-40-135    Assessing and Reporting Impediments to Performance

§ 80-40-140    Duty to Report Ethical Violations

§ 80-40-145    Professional Development

 

Part 200          Other Provisions

§ 80-40-201    Certification

§ 80-40-205    Guidance

§ 80-40-210    Competency; Violation of Canons

§ 80-40-215    Interpreters/Translators

§ 80-40-220    Government Interpreters/Translators


 

Chapter Authority: 3 CMC § 4421; 3 CMC § 4424(a)(1).

 

Chapter History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Commission Comment: For a complete history of the Department of Labor, see the general Commission comments to NMIAC subchapters 80-10.1 and 80-20.1.

 

In January 2006, the Department of Labor adopted the Ethics Code for Translators and Interpreters in Labor, Immigration and Refugee Protection Matters as codified in this chapter. This chapter establishes “a code of conduct for translators and interpreters that applies in administrative hearings within the Department of Labor and in immigration-related proceedings, including refugee protection proceedings conducted by the Attorney General.” 27 Com. Reg. 25231 (Nov. 25, 2005).

 

The Commission created the titles for parts 001 and 100 and for the sections in part 200 in this chapter.

 

Part 001 -       General Provisions

 

§ 80-40-001    Applicability

 

This chapter shall guide and be binding upon all persons, agencies and organizations who administer, supervise, use, or deliver translating or interpreting services to the CNMI Department of Labor, or to the Office of the Attorney General, or for immigration and refugee-related matters.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Part 100 -       Canons of Ethics

 

§ 80-40-101    Accuracy and Completeness

 

Interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and without explanation.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-105    Representation of Qualifications

 

Interpreters shall accurately and completely represent their certifications, training, and pertinent experience.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-110    Impartiality and Avoidance of Conflict of Interest

 

Interpreters shall be impartial and unbiased and shall refrain from conduct that may give an appearance of bias. Interpreters shall disclose any real or perceived conflict of interest.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-115    Professional Demeanor

 

Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be as unobtrusive as possible.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-120    Confidentiality

 

Interpreters shall protect the confidentiality of all privileged and other confidential information.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-125    Restriction of Public Comment

 

Interpreters shall not publicly discuss, report, or offer an opinion concerning a matter in which they are or have been engaged, even when that information is not privileged or required by law to be confidential.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-130    Scope of Practice

 

Interpreters shall limit themselves to interpreting or translating, and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-135    Assessing and Reporting Impediments to Performance

 

Interpreters shall assess at all times their ability to deliver their services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate authority.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-140    Duty to Report Ethical Violations

 

Interpreters shall report to the proper authority any effort to impede their compliance with any law, any provision of this, or any other official policy governing legal interpreting and translating.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

§ 80-40-145    Professional Development

 

Interpreters shall continually improve their skills and knowledge and advance the profession through activities such as professional training and education, and interaction with colleagues and specialists in related fields.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Part 200 -       Other Provisions

 

§ 80-40-201    Certification

 

The Department of Labor and the Office of the Attorney General may require that as a condition of appearing before the agency as a translator or interpreter, the person performing those duties must certify that he or she has read the above canons [Title 80, chapter 40, part 100] and agrees to adhere to the standards of conduct stated within them.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Commission Comment: The Commission created the title for this section.

 

§ 80-40-205    Guidance

 

For guidance in applying the canons [Title 80, chapter 40, part 100], the commentary available from the National Center for State Courts should be consulted: Hewitt, William E., ed. Court Interpretation: Model Guide — Chapter 9: Code of Professional Responsibility for Interpreters in the Judiciary, National Center for State Courts (1995), http://www.ncsconline.org/wc/publications/Res_CtInte_ ModelGuideChapter9Pub.pdf.

 

Modified, 1 CMC § 3806(f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Commission Comment: The Commission created the title for this section.

 

§ 80-40-210    Competency; Violation of Canons

 

An agency may decline the services of a translator/ interpreter who violates the standards established by the canons [Title 80, chapter 40, part 100]. The agency may refuse to allow a person to participate in cases as a translator or interpreter if credible evidence suggests that the person is not sufficiently competent to act as translator or interpreter or the person has acted in any way to mislead or falsify information presented to the agency or has otherwise violated this chapter.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Commission Comment: The Commission created the title for this section.

 

§ 80-40-215    Interpreters/Translators

 

As used in this chapter, the word “interpreters” includes both interpreters and translators, and the same standards apply to a person whether interpreting or translating.

 

Modified, 1 CMC § 3806(d), (f).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).

 

Commission Comment: The Commission created the title for this section.

 

§ 80-40-220    Government Interpreters/Translators

 

A person employed by a foreign government, or by any foreign, federal or local government agency as a translator or interpreter may, but is not required to, present evidence of training, certification or pertinent experience before providing services covered by this chapter. He or she may, however, be required to show proof of employment with duties that include translating or interpreting, and must disclose any potential conflict of interest to all participants.

 

Modified, 1 CMC § 3806(d).

 

History: Adopted 28 Com. Reg. 25229 (Jan. 30, 2006); Proposed 27 Com. Reg. 25229 (Nov. 25, 2005).



[1] 4 CMC § 9503

[2] Public Law 15-108, § 4932, provides: Medical insurance. Employers shall pay all expenses of necessary medical care for foreign national workers except as provided by regulation. After commencement of operation of the LHlRF as provided in subsection (d) of this section, employers of foreign national workers shall be required to have an approved health insurance contract providing coverage for each foreign national worker employed. This contract shall be effective upon entry of the foreign national worker to the Commonwealth and may be cancelled upon the expiration of the employer’s obligation as provided in subsection (b) of this section.