NYC Agency Contract.... Egregious?

[tcjohnson2010]

Hi all! I've got some questions about an employment contract for my fiance. First a few background details.

Employment status: Employed, three year contract with agency (agency petitioned her from Philippines for permanent residence status as skilled worker)

Immigration status: Valid green card holder since arrival two years ago.

Facility: Skilled nursing facility in Manhattan.

Years Left on Contract: 1 year 3 months.

Here's the situation

My fiance's petition was picked up by an agency here in New York. She's been working in the same facility since she arrived, and still has a little over a year on her contract.

There are a few problems that I would like to address. First off, I don't believe she is being paid correctly for overtime. Her regular work schedule is 35 hours a week, and she often works 45 hours a week, but is only paid 5 hours of overtime. According to my knowledge, she is supposed to be paid overtime for hours worked over and above her regularly-scheduled workload, is that correct?

Secondly, I know that nurses often stay after work to finish up paperwork, etc. She has been instructed by her facility to clock out right at 4:00 pm and then go back and finish her work or else she will be penalized. She normally finishes her work at 4:20 or 4:30. Should she be paid for the additional time she spends working after her clock out time?

I should have looked at her contract from the beginning to determine whether or not I thought it was fair and legal. While I am not a lawyer, I believe certain clauses to be egregious:

She must complete the following in order to satisfy her contract:

1. between 1700 and 2000 working hours per year NOT including over time

2.between 5100 and 6000 hours total NOT including over time

3. a total of 3 years of service with the agency.

If she breaks her contract, the following will apply:

1. She must pay $15 per hour for every hour that she failed to fulfill with the agency AND

2. She CANNOT work as a nurse (or practice the science of nursing) in any capacity for any amount of money, or directly or indirectly operate or become an agent, landlord or owner, or hold any position or be associated with any facility or organization that competes with the agency in the United States for three (3) years.

AND

3. May be reported to USCIS and ICE for revocation of permanent resident status and face the possibility of deportation. (I know this threat is BS already. She's never committed a crime and the only way she can be deported is if they can prove she committed fraud when the agency petitioned her, for example if she never intended to work for them in the first place, which is not true.)

There is also a section that states if the individual is terminated by the agency for being untruthful, subordinate or if any other issues arise leading to termination, the employee will be turned over the USCIS, ICE and Philippine Courts for prosecution (again, doesn't really fly with me)

Is this all pretty standard stuff or is it meant to deter new immigrants from leaving the agency? I understand that, in most cases, we should all abide by the rules of contracts we sign, but it just seems like these contracts were forced upon people who had been patiently waiting for years to go through the legal process to become a nurse in the U.S.

I also believe the agency thinks they can skip out on some basic labor laws because their staff is comprised totally of immigrants who likely don't know much about their employment rights as residents in the U.S. No one is speaking up about it because they're afraid of backlash, etc.

Please let me know your thoughts. I've already handed the contract to an attorney for review, I just wanted some outside opinion. Thanks!

[JustBeachyNurse, LPN]

You need legal advice which we cannot provide her per site ToS.

But I can tell you NY follows federal law. OT is paid for hours over 40 not over regular schedule so she is being paid correctly if she is paid 5hrs at overtime rate if the total hours for the week is 45. Only a union contract would override federal law or if like certain states (I think CA is one) where any hours over 8 in a shift is paid at OT not just over 40 hour work week.

[mvm2]

I agree with PP on the overtime. At our agency you are considered full time if you work 35 hrs a week, but overtime pay is not started until after 40hrs

[Silverdragon102, BSN]

As mentioned we really are going into the remit of legal advice and this is something we can not offer. I would wait and see what your lawyer says