Foreign Nurses Charged For Walking Off Job - page 12

Smithtown nurses charged with endangering kids after walk-out Ten nurses who abruptly resigned from their jobs last year at a Smithtown nursing center were charged Thursday -- along with an... Read More

  1. by   Gromit
    sounds like a really nasty business. The more that comes to light, the more tangled the case seems.
    I can answer some of what you were asking, Pinoy- yes, there are times that lawyers WILL take a case 'pro-bono' or at a vastly reduced fee-rate, for the purpose of trying a 'landmark' or very public case to help them make a name for themselves or their firm if they're in one. Though, of course, its rarely as spectacular as in the movies (grin). I guess that from time to time they may even do it out of the uh, goodness, or their uh, hearts -of course there is some contention as to weather or not lawyers even HAVE hearts, much less any 'goodness'... but thats for another thread (grin).

    I may not read it correctly, but on the surface it doesn't surprise me in the least that the Filipines' news would cast the American situation in a bad light -after all, they see many promising nurses and doctors leave their islands for a better future in the 'states. That HAS to cause ruffled feathers. I can't imagine that they leave with the well wishes of their own government and community. I have little doubt that the stories of 'rat-infested warehouses for homes' bit is grossly exaggerated -I'm no fan of New York, but that IS kind of swinging a bit hard.
    As for providing their own lawyers, can foreign lawyers 'work' in US Courts, if its a 'local' or 'state' case? I don't really know, but I didn't think so.
    If you aren't working as a nurse, but as a clerk or whatever, then you don't really have the right to demand nurses' pay -I think thats really up to the employer, and the employer in this case doesn't sound like a well-regarded place to work. I know when I went on light-duty (health-related) and worked as a telemetry monitor tech, I was paid my regular RN pay, but they certainly didn't have to pay me that rate.
  2. by   Sheri257
    Quote from Gromit
    As for providing their own lawyers, can foreign lawyers 'work' in US Courts, if its a 'local' or 'state' case? I don't really know, but I didn't think so.
    If you aren't working as a nurse, but as a clerk or whatever, then you don't really have the right to demand nurses' pay -I think thats really up to the employer, and the employer in this case doesn't sound like a well-regarded place to work. I know when I went on light-duty (health-related) and worked as a telemetry monitor tech, I was paid my regular RN pay, but they certainly didn't have to pay me that rate.
    I know that Vinluan, the lawyer who engineered the walkout, had offices both in the U.S. and the Philippines so ... presumably he was licensed in both countries as well. I'm assuming it's the same with this other lawyer who's representing them now.

    As far as the nurses being paid tech/aide wages, I could be wrong but ... I believe it was because they hadn't passed the NCLEX yet. Some employers will pay RN wages anyway but ... not all of them do so, it wouldn't be that all that unreasonable to not pay RN wages if they weren't licensed RN's at that point.

    :typing
    Last edit by Sheri257 on Apr 6, '07
  3. by   pinoy_guy
    Quote from gromit
    sounds like a really nasty business. the more that comes to light, the more tangled the case seems.
    hmmm.

    from my analysis, people from one side had managed to throw a lot of fluff around the issue.

    if we go to the root cause, the solution is very simple.

    from the rulings by the nassau supreme court...i think it'll reach the same conclusion.


    Quote from gromit
    i can answer some of what you were asking, pinoy- yes, there are times that lawyers will take a case 'pro-bono' or at a vastly reduced fee-rate, for the purpose of trying a 'landmark' or very public case to help them make a name for themselves or their firm if they're in one. though, of course, its rarely as spectacular as in the movies (grin). i guess that from time to time they may even do it out of the uh, goodness, or their uh, hearts -of course there is some contention as to weather or not lawyers even have hearts, much less any 'goodness'... but thats for another thread (grin).
    ha ha ha ha ha!

    i guess they're somebody else's child.

    a friend pointed out to me oj simpson's lawyer, and clinton's lawyer.

    so yeah, lawyers do that.


    Quote from gromit
    i may not read it correctly, but on the surface it doesn't surprise me in the least that the filipines' news would cast the american situation in a bad light -after all, they see many promising nurses and doctors leave their islands for a better future in the 'states. that has to cause ruffled feathers. i can't imagine that they leave with the well wishes of their own government and community.
    on doctors and nurses leaving the philippines...only a few people are making noises about it.

    fact is, there are limited jobs for rns in our country. to the point that new rns have to pay hospitals to work, to gain experience.

    and we produce thousands of rns per year. the board exams are given twice a year, and a board exam has around 15,000 passers--so that's 30,000 rns per year?

    with no place to go except outside the philippines.

    the noise-makers don't even know where to put the nurses, but they don't want the nurses to leave the country.


    Quote from gromit
    i have little doubt that the stories of 'rat-infested warehouses for homes' bit is grossly exaggerated -i'm no fan of new york, but that is kind of swinging a bit hard.
    i was waiting for that bit to be mentioned in court.

    it would have been easy to take video footage of the rats and the leaking roof.


    Quote from gromit
    as for providing their own lawyers, can foreign lawyers 'work' in us courts, if its a 'local' or 'state' case? i don't really know, but i didn't think so.
    i think lizz has a point. either they want lawyers who can practice in both countries...or the nurses want the philippine government to foot the bill for american lawyers.

    i'm thinking option b.

    this could go both ways. the nurses have senator pimentel on their side, when they had the poea revoke sentosa's license. sentosa had requested defensor to look into the issue...and they found that there was no basis to the nurses' complaints, which was why they reinstated sentosa's license.

    expectedly, the nurses complained that defensor had acted for the interests of sentosa, to the detriment of the philippine citizens (who are also emigrants to the us). senator pimentel even had a privileged speech before the senate about the sentosa case.


    Quote from gromit
    if you aren't working as a nurse, but as a clerk or whatever, then you don't really have the right to demand nurses' pay -i think thats really up to the employer, and the employer in this case doesn't sound like a well-regarded place to work. i know when i went on light-duty (health-related) and worked as a telemetry monitor tech, i was paid my regular rn pay, but they certainly didn't have to pay me that rate.
    exactly.
  4. by   pinoy_guy
    Quote from lizz
    i know that vinluan, the lawyer who engineered the walkout, had offices both in the u.s. and the philippines so ... presumably he was licensed in both countries as well. i'm assuming it's the same with this other lawyer who's representing them now.
    oh.

    usually law firms handling immigrant visa cases are the ones that have offices in both countries. like reeves.

    google is my friend: "the law offices of felix q. vinluan is a new york based firm specializing in immigration law." (http://www.fqvesqlaw.com/)

    i wonder if they have juno as a client.


    Quote from lizz
    as far as the nurses being paid tech/aide wages, i could be wrong but ... i believe it was because they hadn't passed the nclex yet. some employers will pay rn wages anyway but ... not all of them do so, it wouldn't be that all that unreasonable to not pay rn wages if they weren't licensed rn's at that point.
    i agree with your analysis.

    http://www.nysna.com/departments/com...g/bad_days.htm

    on nov. 23 (2005), salve and other nurses were given a one-day orientation at brookhaven rehabilitation and healthcare center in queens. the next day, they were sent out on the floors.

    . . .

    in early june, salve reported that she had passed the nclex exam. then on july 2 (2006), word came that the nurses' licenses had been released.
    there is a big hole in the story here.

    what work were they doing there before they got their licenses?

    did they expect to get paid rn wages when they were working without an rn license?

    i hope we learn the whole truth about this case.
  5. by   Sheri257
    Quote from pinoy_guy
    did they expect to get paid RN wages when they were working without an RN license?
    Apparently they did. This, again, is a fundamental miscalculation on the nurses' part. You can't complain about not receiving RN wages if you haven't passed the NCLEX yet.

    When you start making claims that don't hold up to scrutiny then, the credibility of your entire case is called into question. Even if you're right about some things, you don't want to raise any doubts by making demands for wages you're not entitled to.

    This is probably why the court hasn't ruled in their favor with the breach of contract issue. Once the judge sees that you're not being honest and up front about one part of the case, they tend to doubt everything else you're saying as well.

    :typing
    Last edit by Sheri257 on Apr 7, '07
  6. by   boot_unit
    Quote from lizz
    Apparently they did. This, again, is a fundamental miscalculation on the nurses' part. You can't complain about not receiving RN wages if you haven't passed the NCLEX yet.

    When you start making claims that don't hold up to scrutiny then, the credibility of your entire case is called into question. Even if you're right about some things, you don't want to raise any doubts by making demands for wages you're not entitled to.

    This is probably why the court hasn't ruled in their favor with the breach of contract issue. Once the judge sees that you're not being honest and up front about one part of the case, they tend to doubt everything else you're saying as well.

    :typing
    sentosa agency recruit nurse from phil. via limited permit so they can work
    as nurse or paid as nurse for a year but they must passed the nclex exam within that period if not they become nursing aide
  7. by   pinoy_guy
    http://www.manilastandardtoday.com/?...ay_april9_2007

    hounded by misfortune


    ten filipino nurses who migrated to the united states and dreamt of striking it rich in the land of milk and honey now find themselves mired in a civil suit lodged by their employer. they are in danger of being thrown into jail and paying a hefty fine.

    . . .

    also charged was the nurses' lawyer, felix vinluan, who was accused of inducing them to resign and abandon their jobs.

    . . .

    the 10 were among the 27 filipino nurses and a physical therapist (hired by the manila-based sentosa recruitment agency) who filed a class suit against the sentosa group last year for alleged violations of their employment contracts, unfair labor practices and discrimination.

    . . . they had a three-year commitment to work for sentosa care, but because they broke the contracts and left their jobs, the nurses were liable for a $25,000 fine, according to the indictment.

    . . .

    the nurses complained that they were allowed to work for the shifts they were promised. they also complained of being housed in dilapidated apartments. some of them were made to work as clerks and were paid only $12 to $14 per hour. they also railed against non-payment of overtime and shift differentials. they claimed they had abusive supervisors.

    senate minority leader aquilino pimentel jr. brought the plight of the nurses to national attention when he delivered a privilege speech at the senate last sept. 6. pimentel took then presidential chief-of-staff michael defensor (now a team unity senatorial bet) to task for taking the cudgels for sentosa at the expense of the nurses. he traced the "sudden" lifting of the preventive suspension of the recruitment activities of sentosa to defensor's intervention. but defensor reasoned out that he committed no impropriety since he only followed up the case against sentosa with the philippine overseas employment administration upon the instruction of president gloria macapagal arroyo, who received a letter from new york senator charles schumer seeking assistance on the problems encountered by sentosa relative to the nurses' case.

    pimentel requested the senate labor committee to conduct an inquiry into the ordeal of the nurses and the alleged malpractices of sentosa. but nothing more was heard about the case from the senate after pimentel's privilege speech.
    the nurses' lawyer, james druker of garden city, maintained that "there is no crime" and "no boy was endangered" when they resigned en masse and abandoned their jobs.

    "they just wanted out," druker said. "they didn't leave for better jobs; they were just tired of broken promises."
    sentosa care chief operating officer bent philipson branded the mass resignation and walkout of the filipino nurses as "nothing short of a malicious attempt to cripple our network of health care centers in the region." . . .

    . . .

    . . . but those nurses were not charged.

    why? the answer was partly given by sentosa's legal counsel howard fensterman, who claimed that the alleged violations of the employment contract by the health care consortium "have been recanted by most of the nurses who were deposed."
    philipson, who flew to manila the other week, had harsh words for jacinto: "he's dishonest." jacinto was tagged as instrumental in convincing his fellow nurses to free themselves from their job contracts.
    he said that unlike other job firms recruiting nurses for overseas assignment, sentosa does not charge its recruits anything. "but some corrupt people did not like this idea." he claimed that vinluan is doing legal services for some of sentosa's competitors in the business.

    "what makes this particularly troubling to us is the fact that we spend a great deal of money to cover all training, immigration, work status, temporary housing and job placement costs for these nurses and we expect them to commit themselves to caring for our patients," added the sentosa executive.
    some answers.

    these are quotes from both sides.

    we'll know who was telling the truth after the nassau county supreme court decides on the case.
  8. by   pinoy_guy
    http://globalnation.inquirer.net/new...ticle_id=59388

    filipino nurses in ny ask poea to rule on case vs sentosa

    04/09/2007


    manila, philippines -- the 10 filipino nurses in new york charged with, among others, endangering their patients have asked the philippine overseas employment administration (poea) to rule on the case of contract substitution they filed against sentosa recruitment agency.

    in an e-mail to media outfits monday, the nurses' lawyer, filipino-american salvador tuy, said sentosa allegedly violated poea recruitment rules and regulations by making the nurses work for avalon gardens, which does not appear in the poea-approved contracts with sentosa recruitment agency in manila.
    i thought this claim was debunked by the nassau county supreme court.


    tuy urged the poea to re-impose a preventive suspension on sentosa to protect other filipino nurses from suffering his client's fate.
    there are 450 nurses who are itching to get to the us to "suffer [his] client's fate."


    in a phone interview, poea administrator rosalinda baldoz told inquirer.net that officers on the case have promised to come up with a decision this week.

    the case, filed april last year, caused the immediate suspension of sentosa. however, when the agency submitted its position, the poea lifted the preventive suspension.

    sentosa, whose case was backed a us senator, argued that the nurses left without spending anything and were immediately given immigrant status.

    "under philippine law, the charge for switching an employer to the damage and prejudice of the filipino worker is a violation of the recruitment act. if there are more than three complaints against the recruiter, the offense constitutes economic sabotage and there is no bail allowed. yes, we could have at least suspended sentosa's license," he said.

    tuy argued that his clients cannot be charged with abandoning their patients and endangering children because the employer on record is prompt nursing agency.

    "there is a legal definition of an employer in new york state law and us federal law and avalon is not the employer of records of the 10 nurses," he said.

    "this brings the question how can the nurses be charged...if they are not employees of avalon gardens and they were not supposed to work there in the first place. remember that the definition of the endangerment law requires the accused to be 'legally charged with the care or custody of a child,'" he added.

    this decision by the nassau county supreme court was not favorable to the nurses:
    http://decisions.courts.state.ny.us/.../006079-06.pdf
  9. by   NRSKarenRN
    nursing spectrum article, monday april 9, 2007:

    the rules of abandonment
    in april 7, 2006, ten nurses working at avalon gardens rehabilitation and healthcare center (avalon) in smithtown, n.y., handed in their resignations effective immediately

    patient abandonment
    to date, no licensure or disciplinary action has been taken against the ten. in fact, according to druker, the n.y.s. education department initially suspended the nurses’ licenses after receiving a complaint from sentosa. “following an investigation, which included interviews of the nurses and the nursing home, the licenses were reinstated,” says druker, “and there is no pending [disciplinary] action against them.”

    tom dunn, a spokesperson for the n.y.s. education department’s office of the professions (nysed-op),which oversees the licensure and practice of nurses, would not comment on this specific matter, describing it as “evolving.” he did, however, refer to the department’s position regarding patient abandonment. “the position makes a distinction between patient abandonment (in which a nurse receives a patient assignment and then leaves before another appropriate person arrives) and employer abandonment (e.g., when nurses are abused, not paid for hours worked, required to work overtime, and not properly trained to take on their expected responsibilities).”

    the criminal case for conspiracy and endangering the welfare of children or disabled persons against these nurses is not dependant upon a licensure action or necessarily the definitions and practices of the nysed-op. the specific facts and circumstances (and the jury) will ultimately determine whether the actions of these nurses amounted to criminal conduct.
    Last edit by NRSKarenRN on Apr 10, '07
  10. by   Sheri257
    Tuy argued that his clients cannot be charged with abandoning their patients and endangering children because the employer on record is Prompt Nursing Agency.

    “There is a legal definition of an employer in New York State law and US federal law and Avalon is not the employer of records of the 10 nurses,” he said.

    “This brings the question how can the nurses be charged...if they are not employees of Avalon Gardens and they were not supposed to work there in the first place. Remember that the definition of the endangerment law requires the accused to be 'legally charged with the care or custody of a child,'” he added.
    This is NOT what the Nassau court determined.

    In the breach of contract case, the judge found that all the Prompt Nursing Agency did was handle payroll for Sentosa ... that didn't mean Sentosa wasn't the employer of record.

    http://decisions.courts.state.ny.us/.../006079-06.pdf

    This is what the court says:

    "According to the affidavit of Prompt's HR director, the nurses weren't agency nurses employed by Prompt. Rather they were employees of various Sentosa nursing homes. Once the nurses started working for a Sentosa facility, Prompt functioned soley as a payroll service.

    It had nothing to do with the supervision and control of the defendant nurses' duties which was the sole province of supervisory personnel at each of the individual Sentosa facilities.

    Each of the nurses admits they entered into a contract with (Sentosa). Moreover, these agreements have been submitted in support of their dismissal motion. Their letters of resignation were submitted to the Sentosa facility which employed them.

    Given these facts, it is contradictory for the defendant nurses to argue they were employed by Prompt. "


    Why doesn't the Filipino press bother to read these court decisions? Since a judge has already said this lawyer is wrong, one would think it would be an important fact to mention.

    :typing
    Last edit by Sheri257 on Apr 10, '07
  11. by   pinoy_guy
    Quote from boot_unit
    sentosa agency recruit nurse from phil. via limited permit so they can work
    as nurse or paid as nurse for a year but they must passed the nclex exam within that period if not they become nursing aide
    limited permit...i thought this does not entitle a nurse to an rn's wage?

    from what i understand, you get rn wages after you pass the nclex-rn (and after fulfilling all the requirements to be an rn).

    not before.


    Quote from lizz
    this is not what the nassau court determined.

    in the breach of contract case, the judge found that all the prompt nursing agency did was handle payroll for sentosa ... that didn't mean sentosa wasn't the employer of record.

    http://decisions.courts.state.ny.us/.../006079-06.pdf

    this is what the court says:

    . . .

    "given these facts, it is contradictory for the defendant nurses to argue they were employed by prompt. "
    i think it's like the anna nicole smith case...the lawyer boyfriend wanted the bahamas court to rule on the paternity, because under bahamian law, paternity is determined by the father's name on the birth certificate. the other possible father went to a us court because the court gives more weight to dna evidence rather than the father's name on the birth certificate.

    since the nurses lost in the nassau county supreme court, they want another entity (the philippine overseas employement administration) to rule on the case.


    Quote from lizz
    why doesn't the filipino press bother to read these court decisions? since a judge has already said this lawyer is wrong, one would think it would be an important fact to mention.
    ah.

    the philippine news articles on this case give us a clue: they all read like press releases from one side or the other.

    i haven't come across a well-studied, well-written analysis on this case from the philippine news agencies.


    Quote from nrskarenrn
    nursing spectrum article, monday april 9, 2007:

    "the position makes a distinction between patient abandonment (in which a nurse receives a patient assignment and then leaves before another appropriate person arrives) and employer abandonment (e.g., when nurses are abused, not paid for hours worked, required to work overtime, and not properly trained to take on their expected responsibilities)."
    thanks for this article, this is a big clue on what happened.

    so the nysed-op is considering the case as employer abandonment.

    i am curious about the items in the parenthesis: did the nysed-op find evidence "nurses are abused, not paid for hours worked, required to work overtime, and not properly trained to take on their expected responsibilities"?

    or were the items mentioned to help explain the circumstances, but do not particularly apply in this case?
  12. by   Sheri257
    Quote from pinoy_guy
    limited permit...I thought this does not entitle a nurse to an RN's wage?

    from what I understand, you get RN wages after you pass the NCLEX-RN (and after fulfilling all the requirements to be an RN).

    not before.
    It doesn't entitle interim permit nurses to RN wages. But it really depends on the facility. Some will pay RN wages on permit, others don't.

    And, if a facility has a lot of foreign nurses they may have a policy of not paying RN wages until they pass the NCLEX because foreign nurse NCLEX pass rates tend to be lower than U.S. nurses.

    :typing
    Last edit by Sheri257 on Apr 11, '07
  13. by   spotlight4u
    Trudy,
    Have you ever worked with or along side any foreign nurses for any length of time? They obviously were very ill-advised. I have consistently worked with and along side nurses from the Philippines, India, Korea, and hispanic nurses for the past year having an incredible great relationship with all of them. As a caucasian nurse, I have definitely been the minority presence! There is a distinct cultural difference which, if ill-advised as it appears they were, should definitely be taken into consideration. They already have strikes against them, so don't speak too quickly.
    The best to you.

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