Guam § 7118 - Temporary Labor Certification for Non-immigrant Workers; Restrictions; Penalties.

§ 7118. Temporary Labor Certification for Non-immigrant Workers; Restrictions; Penalties.

(a) The Director of Labor, pursuant to the Administrative Adjudication Law, shall promulgate rules

and regulations to establish operating guidelines for the certification and employment of non-immigrant

alien temporary workers in Guam (the Rules). Such Rules shall establish the conditions under which such

workers may be temporarily employed and housed in Guam because of a need for their skills which are not

readily available in Guam. The Rules shall be periodically reviewed by the Department of Labor (the

Department), at least once every two (2) years, and shall include the following:

(1) A temporary labor certification issued by the Department shall be limited to one (1) employer

and only to those projects approved by the Department, shall be non-transferable, and shall be valid

only for the specific activity designated in the certificate and only for the occupation specified for each

temporary worker covered by the certificate.

(2) Civil penalties for violations of the Rules by an employer or by a temporary worker, not to

exceed a fine of Five Hundred Dollars ($500) per person for each such violation.

(b) Any employer who is a persistent violator of the Rules is guilty of a misdemeanor, and upon

conviction shall be imprisoned for not more than six (6) months or shall pay a fine of not more than Ten

Thousand Dollars ($10,000), or shall suffer both such imprisonment and fine.

(c) “Persistent violator” means an employer who commits, with criminal negligence as defined in 9

GCA § 4.30, a second violation of the Rules and who has been cited and fined for a previous violation

within any twelve (12) month period immediately preceding the second violation.

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(d) Any employer with a temporary labor certification found guilty of intentionally or knowingly

violating 44017 of this Chapter, or of the Rules, in addition to any sanctions imposed under such § 7118

and § 7118.1, may have his temporary labor certification suspended and be disbarred from any temporary

labor certification program for a period not exceeding three (3) years.

(e) Fines collected by the Department under the provisions of this section shall be deposited in the

Manpower Development Fund to be employed exclusively for the surveillance and enforcement operations

within the Alien Labor and Processing Certification Division and other divisions at the Department of Labor

with similar tasks. The Director of Labor shall complete an annual report of all expenditures and activities

under this subsection to the Legislature.

(f) A quota for temporary construction workers (H-2Bs) shall be established by the Governor of Guam

to confine the number of such temporary workers to existing job vacancies.

(g) No person will be granted a certification to employ such non-immigrant alien workers without first

obtaining a permit for a workers’ dormitory from the Department of Public Health and Social Services,

except that employers employing a minimum number of such workers or workers planning to live with

relatives may obtain an exemption from the dormitory requirement from the Department. No such permit

shall be granted in violation of the zoning law. An applicant for such a permit must submit complete,

detailed plans of the dormitory, site plans and must demonstrate compliance with all applicable health and

safety requirements. No employer may withhold from his workers’ wages any funds to cover the cost of

meals and housing unless the workers’ housing, the kitchen and dining facilities, and the kitchen workers

have all necessary health and Department permits, and only after the written consent of the worker, which

consent shall be filed with the Department. The Director of Public Health and Social Services, in

coordination with the Guam Environmental Protection Agency and the Department, shall cause to be

inspected every workers’ dormitory at least once every three (3) months.

(h) The Department in cooperation with the Department of Public Health and Social Services, the

Guam Environmental Protection Agency, the Department of Revenue and Taxation and the Guam

Contractors License Board shall have all necessary investigative powers to carry out the provisions of this

section.

(i) No employer of temporary workers regulated under this section may withhold such workers’

passports, control such workers’ behavior during non-working hours, or deduct from such workers’ wages

taxes due governments other than the government of Guam or of the United States, except as such

deductions are authorized by treaty.

(j) In addition to the other penalties provided in this section, any employer who violates any of the

provisions of this section may be sued for civil damages by any worker adversely affected by such

violations, and if such damages are established at trial, such damages shall be trebled and the worker shall

be entitled to reasonable attorney’s fees to be paid by the employer.

(k) It shall be unlawful for a non-immigrant temporary worker admitted to Guam under the H-2(b)

program to participate in making any determinations as to the recruitment and selection of personnel, or the

processing of applications for temporary alien labor certification. Non-immigrant temporary workers

admitted to Guam under the H-2(b) program are expressly prohibited from conducting job interviews, rating

job applicants or applications, or partaking in any other activity involving making any determinations

concerning the selection of employees.

Enforcement. Upon verification by the Department of Labor that a violation of this Subsection has taken

place, the Department shall assess a penalty on the employer as prescribed by § 7125, infra.