San Nicolas said virtually all labor complaints are disputes between two parties to a contract.
“Let me correct your impression that a plaintiff in a Small Claims Court proceeding ‘must’ pay a fee,” he said in his letter to Reps. Tina Sablan, Ind.-Saipan, and Edward Salas, R-Saipan. “A plaintiff who files in Small Claims Court, like in other courts, may obtain a fee waiver when the plaintiff filed in forma pauperis,” which is Latin for “in the character or manner of a pauper.”
This designation is given by courts to someone who is without funds to pursue the normal costs of a lawsuit.
This procedure, San Nicolas added, is explained in the Small Claims packet that the workers receive from the department. The court clerk offers such a fee waiver to foreign national workers and most do receive fee waivers.
San Nicolas said Sablan and Salas are incorrect in asserting that Labor has failed for years to enforce its own orders.
Enforcement of an order is at the option of the party to whom an award has been made, the Labor chief said.
He noted that there’s no Labor enforcement mechanism that automatically comes into operation when an award has been issued, adding that “the party to whom the award has been made has to decide to enforce the order, take the necessary steps to activate the available processes to enforce the order, and participate in the effort to enforce the order.”
In the past, he said, if a worker requested enforcement of an order, the hearing office scheduled a “show cause” hearing.
This procedure, he said, was not as effective as the Small Claims Court procedure now in effect for obtaining payment of administrative awards.
“If a worker makes no effort to pursue enforcement of an administrative order for six years, then the statute of limitations bars enforcement,” he said.
Sablan said Labor’s new policy of referring unpaid administrative orders to Small Claim Courts appears to shift the burden of enforcement from Labor to the court, unjustifiably burdening the victims of labor abuse.
But according to San Nicolas, “the Legislature took away from the department the funds available to the department to implement the hardship provisions to which you refer. When that happened, the department suspended its provision of hardship assistance in connection with repatriations, as the Legislature must have intended.”
He said Labor maintains a barred list that includes employers who fail to pay fines, and the department does not process applications for employers who are on this list.
Each foreign worker who receives an administrative order from Labor is advised that if an award of monetary damages is not paid within the time limit specified in the order, the worker should pick up a Small Claim Packet and proceed to Superior Court, San Nicolas said.
“A court can order parties to appear before it and enforce such an order with an arrest; Labor cannot. A court can seize assets, such as bank accounts, and use the proceeds to pay a judgment; the department cannot. A court can coerce payment of a debt with incarceration; the department cannot,” he said.
