SIXTEENTH NORTHERN MARIANAS COMMONWEALTH LEGISLATURE

H. B. NO. 16-)=M

A BILL FOR AN ACT

To amend Public Law 15-108, the Commonwealth Employment Act, in order to

preserve the due process rights of workers who may be affected by certain
provisions of that Act; and for other purposes.

BE IT ENACTED BY THE SIXTEENTH NORTHERN MARIANAS

COMMONWEALTH LEGISLATURE:

Section 1. Findinps and purpose. The Commonwealth Legislature finds that

amendments to Public Law 15-108, the Commonwealth Employment Act of 2007 (hereinafter,
LLA~t"),
are necessary to preserve the due process rights of those who may be affected by
certain provisions of that Act.
The Legislature finds that certain provisions of the Act, specifically including the brief
statute of limitations, the requirement that workers who are engaged in litigation over a
violation of Commonwealth or Federal law depart the Commonwealth and re-enter prior to
having a hearing in their labor case, and restrictions on the types of violations for which
transfer relief is authorized, may have a chilling effect on a worker's right to seek redress
through lawful means.
Accordingly, this legislation, if enacted, will establish a 12-month statute of limitations
on existing contracts. The legislation will also limit a worker's right to file a labor complaint
to six (6) months beyond the termination or expiration of the worker's contract, in order to
discourage lengthy delays in filing complaints after a contract has ended, and will further
provide for exceptions in cases where the person who has committed the violation takes action
to conceal the violation, or to otherwise prevent the worker from reporting the violation. This
legislation will also affirm the right of a worker under the due process clause of the CNMI
Constitution to remain in the Commonwealth until he or she has had a meaningful opportunity
for a hearing in the worker's case, as articulated in well-reasoned decisions by the
Commonwealth Supreme Court in OfJice of the Attorney General v. Deala, and Office of the
Attorney General v. Rivera.
 H. B. NO. 16- 27 7

The Legislature also finds that the current practice of notice of hearings being given by,
publication as a first resort, without first attempting service by more traditional means, is
problematic, to say the least. Article I, tj 5 of the CNMI Constitution provides, "No person
shall be deprived of life, liberty or property without due process of law." The United States
Supreme Court, in the case of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1 950), held that the notice required under the due process clause must be "reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections." Id., at 314-315.
Mullane stands for the general proposition that the more significant a party's interest,
the more certainty is required that notice will be effective. For example, in Mennonite Board
ofMissions v. Adams, 462 U.S. 791 (1983), the Court ruled that the constructive notice by
publication afforded mortgagees "must be supplemented by notice mailed to the mortgagee's
last known address, or by personal service." Id. at 798. The Court went on to say that "Notice
by mail or other means as certain to ensure actual notice is a minimum constitutional
precondition to a proceeding which will adversely affect the liberty or property interests of any
party, whether unlettered or well versed in commercial practice, if its name and address are
reasonably ascertainable." Id. at 800. This legislation will ensure that before notice is given
by publication, that more effective means of service will first be attempted, but will allow a
Hearing Officer to authorize service by publication in cases where other forms of service prove
to be ineffective.
The Legislature further finds that a range of circumstances may justify the grant of an
Administrative Hearing where an Administrative Hearing Officer would make a determination
as to whether the granting of an option to transfer would be necessary and proper. This
legislation will accordingly ease some of the restrictions on transfer relief so that Hearing
Officers may achieve a just result in all cases where it appears transfer relief is justified.
The Legislature also finds that Public Law 15-108 provides for certain sanctions and
penalties against workers that are not necessary to deter the filing of frivolous complaints,
participation in illegal sponsorships, or other abuse of process. Accordingly, this legislation
will clarify provisions in the Act that authorize deportation of workers and those which purport
 H. B. NO. 16- 2 7 7

to deprive a worker of relief for any or all of his or her claims for violations that may be trivial
or innocent.
Section 2. Repealer and reenactment. Section 4945 of PL 15-108 is hereby repealed
and reenacted as follows:
''5 4945. Service of process.
Service of process for any notice of any kind required for any proceeding conducted by
the Administrative Hearing Office may be by personal service, by first class mail, postage
prepaid, to any party at the party's last known address on file with the Department.
Upon a finding by the Hearing Office that personal service would be ineffective,
service may also be effected by posting the notice on the Department of Labor website for no
less than two consecutive weeks prior to the date of the hearing, and either:
1. Publishing the notice for no less than two consecutive weeks in a newspaper
of general circulation in the Commonwealth; or
2. Conspicuously posting the notices in four places of public congregation for
no less than two consecutive weeks.
Provided, however, that whichever means is used it must be reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to be heard."
Section 3. Repealer and reenactment. Sections 4947 (e) and (h) of PL 15-108 are
hereby repealed and reenacted as follows:
"(e) A hearing officer may grant a transfer so that a foreign national worker may
become employed under a new approved employment contract without first exiting the
Commonwealth, provided that:
(1) The grounds for granting transfer relief are limited to unlawful termination
of an approved employment contract by an employer; the voiding of an
approved employment contract or debarment of an employer for a violation
under this chapter; a reduction in force pursuant to Section 4937; the
abandonment of the worker during the term of an approved employment
contract; non-payment of wages or overtime compensation as provided by
law; fraud in the inducement of the contract; breach of contract by an
 H. B. NO. 16- 2 7 7

1 employer, including but not limited to breaches by an employer who closed

a business, declared bankruptcy, or exited the Commonwealth evidencing
an intent not to return; or, upon a finding by the hearing officer that the
4 foreign national worker has prevailed under a theory of law or equity and
5 that transfer relief is appropriate.
6 (2) A transfer may be granted only to a foreign national worker who a hearing
7 officer finds is not equally at fault for the violation complained of with the
8 employer who committed the violation.
9 (3) A transfer shall be completed within thirty (30) days of the order and in
10 compliance with Sections 4922,4924, and 4925 of this chapter."
11 [ (f) - (g) -- No change. ]
12 "(h) The hearing officer may find an action to be frivolous if it is unfounded in fact or
13 law. The filing of an action which is determined by a preponderance of the evidence to be
14 frivolous shall be grounds for permanently disqualifying the foreign national worker who filed
15 the action from employment in the Commonwealth or permanently barring an employer who
16 filed the action from further employment of foreign national workers."
17 Section 4. Repealer and reenactment. Section 4956 of PL 15-108 is hereby repealed
18 and reenacted as follows:
19 " 5 4956. Limited stay for litigation purposes.
20 (a) A foreign national worker who is required to exit the Commonwealth shall be
21 permitted to remain in the Commonwealth if that worker has filed a labor complaint with the
22 Department for violations of this Act, or the regulations promulgated by the Department for
23 enforcement of this Act, or for breach of contract, or if the worker has filed a complaint with
24 another local or Federal agency for violation of any local or federal law, whether civil or
25 criminal, or if the worker is actively pursuing any civil action in a competent court of
26 jurisdiction, until such time as the foreign national worker has had a meaningfil opportunity
27 for a hearing in the case, consistent with due process rights.
28 (b) A foreign national worker remaining under this section shall exit the
29 Commonwealth within three (3) days of the issuance of a final order in the case, including any
30 appeal thereof, unless a court of competent jurisdiction orders otherwise.
 H. B. NO. 16- 277

(c) The Commonwealth immigration authority shall promulgate regulations for the
implementation of this section."
Section 5. Repealer and reenactment. Section 4957 of PL 15-108 is hereby repealed
and reenacted as follows:
"4957. No stay or bar in other actions.
No provision of this chapter shall bar any other civil or criminal action."
Section 6. Repealer and reenactment. Section 4962 of PL 15-108 is hereby repealed
and reenacted as follows:
" 5 4962. Limitations.
(a) Limitation on effect of foreign national worker status. No employment
contract, registration, certification, permit, or the presence of a foreign national worker in the
Commonwealth pursuant thereto, shall be grounds for naturalization, or citizenship, or
permanent residence in the Commonwealth except as may otherwise be provided by law.
(b) Limitation on time for filing labor complaints. No labor complaint may be
filed more than twelve (1 2) months after the date of the last-occurring event that is the subject
of the complaint on an existing contract, or six (6) months after the date of the last-occurring
event that is the subject of the complaint on a contract which has expired.
(c) Exceptions. In cases where the actionable conduct was not discoverable or
where the person responsible for the actionable conduct took affirmative action to conceal the
violation or to prevent it from being reported, the statute of limitations shall be tolled until the
person filing the labor complaint knew or reasonably should have known of the actionable
conduct, or was no longer prevented from reporting it."
Section 7. Repealer and reenactment. Section 4964 of PL 15-108 is hereby repealed
and reenacted as follows:
" 5 4964. Sanctions and penalties,
After hearing pursuant to the Administrative Procedure Act, 1 CMC $9101 et seq.:
(a) Violation of any subsection of Sections 4923 and 4931 by an employer shall
be grounds for debarment of the employer.
(b) Violation of any subsection of Sections 4923 and 493 l(a) by a foreign
national worker shall be grounds for deportation pursuant to 3 CMC $4340(e).
 H. B. NO. 1 6 - 1 2 7

(c) An employer who knowingly requires or permits a foreign national worker

to pay initial application or renewal fees shall be subject to debarment.
(d) A foreign national worker who, while in the Commonwealth, knowingly
participates in an illegal sponsorship shall be deportable under 3 CMC §4340(e).
(e) Violation of Section 4931(k) by making any unapproved change to an
approved employment contract shall be, in the discretion of the Secretary and in addition to
other available sanctions, grounds for a declaration that the contract is void and for revocation
of an entry permit of a foreign national worker, and for debarment of an employer.
(f) Failure by a foreign national worker or employer to comply with Section
4934(a) by failing to attend an orientation session shall be grounds for cancellation of the entry
permit and deportation of the foreign national worker pursuant to 3 CMC §4340(e), and
debarment of the employer.
(g) Violation of Section 4937 by failing to provide notice of a reduction in force
shall be grounds for imposition of a fine in the employer of up to two thousand dollars ($2,000)
for each foreign national worker terminated in the reduction in force and debarment of the
employer.
(h) Violation of Section 4952 by failing to exit the Commonwealth as required
by law shall be grounds for deportation pursuant to 3 CMC §4340(e) and the imposition of a
fine on the foreign national worker of up to two thousand dollars ($2,000).
(i) Violation of any subsection of section 4963 by an employer shall be grounds
for the denial of an application for an approved employment contract, voiding of an existing
approved employment contract, debarment of an employer, and a fine of up to two thousand
dollars ($2,000) for each unlawful action.
(j) Violation of any of subsections (a)(l), (a)(2), (b)-(f) of Section 4963 by a
foreign national worker shall be grounds for deportation pursuant to 3 CMC §4340(e).
(k) Debarment of an employer shall apply to all business organizations for
which that employer serves as an officer board member partner, or limited liability corporation
member. Such business organizations shall be prohibited from hiring foreign national workers
on the same terms as the employer against whom the debarment was issued. Debarment of an
 H. B. NO. 16- 227

employer that is a business organization shall apply to all persons who serve that business
organization as an officer, board member, partner, or limited liability corporation member.
(1) Failure after thirty (30) days from assessment to pay repatriation expenses
for a foreign national worker incurred by the Commonwealth shall be grounds for the Attorney
General to order the Division of Revenue and Taxation to deduct the full amount of the
repatriation or deportation costs and the full amount of the award from the employer's NMTIT
tax rebate. All such deductions for deportation costs shall be returned to the Alien Deportation
Fund, 3 CMC $4347.
(m)Failure by an employer to make prompt and reasonable efforts to repatriate a
foreign national worker, thereby allowing the worker to become an illegal resident of the
Commonwealth and subject to deportation, shall be grounds for the Attorney General to order
the Division of Revenue and Taxation to deduct the full amount of the anticipated repatriation
or deportation costs from the employer's NMTIT tax rebate. All such deductions for
deportation costs shall be returned to the Alien Deportation Fund, 3 CMC $4347.
(n) Failure to comply with the payment terms of an administrative order, in
addition to any penalties or damages imposed in the order, shall be subject to additional
monetary sanctions of up to twenty-five (25) dollars per day until the obligation is satisfied.
Such additional penalties may be assessed as a sanction either by the Administrative Hearing
Office, or by the Commonwealth Superior Court pursuant to a civil action filed by the Attorney
General.
(0) Any fine pursuant to this section may be imposed by a hearing officer in an
administrative order or by a court in an action filed by the Attorney General.
(p) This section shall not stay or bar any civil or criminal action or remedy in
any court of competent jurisdiction."
Section 8. Severabilitv. If any provision of this Act or the application of any such
provision to any person or circumstance should be held invalid by a court of competent
jurisdiction, the remainder of this Act or the application of its provisions to persons or
circumstances other than those to which it is held invalid shall not be affected thereby.
Section 9. Savings Clause. This Act and any repealer contained herein shall not be
construed as affecting any existing right acquired under contract or acquired under statutes
 P
H. B. NO. 16- a77

1 repealed or under any rule, regulation, or order adopted under the statutes. Repealers
2 contained in this Act shall not affect any proceeding instituted under or pursuant to prior law.
3 The enactment of the Act shall not have the effect of terminating, or in any way modifying,
4 any liability, civil or criminal, which shall already be in existence on the date this Act becomes
5 effective.
6 Section 10. Effective Date. This Act shall take effect upon its approval by the
7 Governor or becoming law without such approval.

Prefiled: &?-,
9- 0~

Date: Introduced By: