US DOJ rules in favor of Sentosa Recruitment Agency

pinoy_guy · Sep 5, 2007

to get an idea of what this case is all about, here is an article on it.

nurses file class suit vs. recruiter, employers

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named respondents to the suit were bent philipson, francis luyun, and 11 nursing homes of which philipson is the chief operating officer. luyun is the chief executive officer of sentosa recruitment agency, one of those cited in the suit.
the complainants are represented by new york immigration lawyer felix vinluan.

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the nurses said they were recruited to work as immigrant workers, while the physical therapist said he was recruited to work as h-1b non-immigrant workers by sentosa recruitment agency.

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the complainants claimed that they are not being paid the prevailing wage rates and are not being given the sufficient number of working hours per week as agreed upon.
in their complaint, they accuse philipson and his companies of not paying them the proper overtime pay, night shift differentials, and holiday pay.

they said their employers have not been providing with promised employment benefits, such as dental and medical health insurance coverage, proper orientation and training, and professional malpractice insurance coverage, among others.

they also said philipson and his companies have prohibited them from working for any other employer, even though all of them, except the h-1b worker, are green card holders and are allowed by law to work for other employers, even on a part-time or per diem basis.

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the filipino health care professionals asked the department of justice's civil rights division to:
require that philipson and his companies to pay them their back wages;

allow them to severe their employment relations with their petitioning employers and with their actual employers, without being held liable under the pre-termination clause of their respective employment agreements or under any other agreement, whether written or verbal;

award them the appropriate attorney's fees;

award them the appropriate exemplary and punitive damages;

enjoin philipson and his companies from engaging in their discriminatory practices;

revoke the recruitment license of philipson and his companies in order to prevent them from exploiting other nurses and migrant workers; and

bar respondents from ever sponsoring foreign employees, whether as immigrant workers or as h-1b non-immigrant workers.

questions:

1. was the entire case dismissed, or were certain points upheld?

2. what will be the repercussion on the 26+1--will they be liable for filing this lawsuit?

3. what will happen to the rns in the philippines who are still under processing?

4. what will the poea decide?

5. how will all this influence the future of filipino rns migrating to the us?

food for thought.

pinoy_guy · Sep 7, 2007

u.s. dismisses case vs sentosa

September 07, 2007 07:51 pm Friday

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the u.s. department of justice dismissed on aug. 31 the case filed by atty. vinluan, lawyer of the so-called "sentosa 26", against sentosa care llc of new york and bent philipson.
in its decision, the u.s. department of justice, civil rights division, found insufficient evidence to believe the injured parties were discriminated.

in sum, no discrimination was committed by sentosa care llc, and the allegations of the "sentosa 26" are baseless.

. . .

poea lifted the suspension and threw out unverified charges of labor malpractice alleged by the nurses against sentosa facilities in new york. this dismissal shows that the poea was indeed correct in lifting the suspension order.

. . .

after reviewing the case the poea ruled on June 8, 2006 that "upon evaluation of the pleadings filed by (sentosa) and their corresponding documents, we find sufficient basis to grant the motion to lift the suspension.

. . .

it was reported a year ago that the 26 nurses, through their lawyer atty. felix vinluan, filed the instant case before the u.s. doj in washington, dc, when the offices of sentosa were in new york.

from the us doj. I don't think there's an iota of doubt about its credibility.

sighs of relief from the nurses under petition by sentosa.

but this decision only dealt with the issue of discrimination.

the question remains: are sentosa-recruited nurses really being maltreated?

if so, safeguards must be instituted to protect our nurses.

I don't think it would be good if they shut down sentosa (as some people are demanding)--hundreds of hoping filipino nurses's dreams would be shattered.

I think fines and safeguards would be a better idea rather than shutting down sentosa.

if sentosa is indeed guilty.

pinoy_guy · Sep 7, 2007

nurses in illegal recruitment case in new york face inquest

last updated 12:56pm (mla time) 08/22/2007

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on Friday, when asked about the case, poea administrator rosalinda baldoz said there was no decision yet.
quoting sentosa 27's lawyer felix vinluan, regalado said the case before poea was for illegal substitution of contract and misrepresentation because the agency made the nurses work as agency nurses instead of being direct-hirees with the homes that sponsored their working visas to the us.

she said the alleged intervention of malacañang, through then presidential chief of staff michael defensor, and us senator charles schumer, also needed to be resolved.

"poea lifted the temporary ban it imposed on sentosa soon after it received a phone call from secretary defensor and a letter from senator schumer...the victims' demands is that the agency's operation be shut down. but sentosa continues to entice nurses to work in the us with false promises," regalado said.

regarding the illegal substitution of contract and misrepresentation cases filed with poea:

http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/index_new/bucaria/2007mar/006079-06.pdf

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this motion, by defendant nurses (with the exception of arlyn torrena) and the sole physical therapist (dondon parungao) (collectively the nurses), to dismiss the breach of contract claim asserted against said defendants pursuant to cplr 3211(a)(7) and for summary judgment against plaintiffs on movants ' counterclaim for actual , compensatory and punitive damages is denied.
. . .

their letters of resignation were addressed to the sentosa facility which employed them. given these facts , it is contradictory for the defendant nurses to argue that they were employed by prompt, rather than by one of the sentosa facilities denominated as plaintiffs herein.

defendants ' dismissal argument is unconvincing, as the complaint , in this court's perception, has been pleaded with sufficient particularity, pursuant to cplr 3013, to adequately advise and apprise defendants of plaintiffs ' claims against them. moreover the allegations include all of the relevant substantive elements of a breach of contract cause of action: the existence of a contract; plaintiffs ' performance on the contract; defendants ' breach of contract and resulting damages.

pinoy_guy · Sep 8, 2007

ruling settles case filed by rp nurses

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the united states department of justice has dismissed the case filed by 26 filipino health professionals against sentosa care llc of new york and ben philipson.

in a letter dated aug. 31, 2007, katherine baldwin, special deputy counsel of the us doj civil rights division, informed elizabeth hack, legal counsel of of sentosa care llc, that the discrimination charges filed against philipson, et al., alleging unfair immigration-related employment practices were investigated by the office of special counsel and the office determined that there was insufficient evidence of reasonable cause to believe the injured parties were discriminated against.

crossbow · Sep 10, 2007

Pinoy_guy

I just spoke to some of the nurses involved in the Sentosa Affair.

They are also in Long Island. Pls. Try not to believe what the papers say.

The case was withdrawn from there and filed somewhere else. I cannot elaborate further since I am not directly involved. I've asked them to join the forum to shed some light on the subject. Hopefully they will heed my advice in order to make their side known.

Thank you

pinoy_guy · Sep 12, 2007

i just spoke to some of the nurses involved in the sentosa affair.
they are also in long island. pls. try not to believe what the papers say.
the case was withdrawn from there and filed somewhere else. i cannot elaborate further since i am not directly involved. i've asked them to join the forum to shed some light on the subject. hopefully they will heed my advice in order to make their side known.

crossbow,

you know where i'm coming from on issues of breaching contracts--i had been on the receiving end of some contract breachers.

regarding the sentosa issue--or any other nursing issue relating to philippine nurses--i'm only sharing what i come across in my readings.

i share articles from both sides, as long as they're from reputable news agencies.

or from official decisions by the courts, as i noticed that the news articles are usually not accurate.

i note when the articles are biased (like when an article is from the lawyer of one side).

i have to say i don't like the demands of the involved nurses--they want to shut down sentosa.

this will have repercussions on the nurses still under petition by sentosa, and on future nurses which will be petitioned.

shutting down sentosa will destroy the dreams of a lot more people. (even if one nurse said that was not their intention, it will still be the end result.)

i prefer that if sentosa indeed did wrong, that sentosa be punished by fines, or by oversight.

shutting it down will close that door for other philippine nurses.

i am not connected with sentosa, nor do i know the people from both sides.

however, i had some acquaintances who filed their papers with sentosa. they know about the issues, yet they signed up with sentosa. the main reason it's so hard to find a petitioning employer in the philippines. in fact, some were even sad because they did not make it to the quota.

killing the agency--by shutting it down--will shut that door permanently. which might also shut the doors of other agencies, if the finding is that the petitioned nurses can leave at any time without any repercussion.

who will petition philippine nurses then?

it's easy to say there will be other agencies or hospitals which will petition, but the harsh reality is that is is very difficult to find one.

just ask the unemployed nurses in the philippines.

the issue of agencies taking advantage of nurses is an old one. i personally know of nurses who got the short end of the stick, but they finished the 2 or 3 years, chalked the low pay to experience (paying their dues), and applied to another hospital with higher rates--which they got, as they had the 2 or 3 year us hospital experience required by most us hospitals.

anyway, bottomline is i am just sharing all the news articles i come across so that people can make up their own minds on the issues.

maybe somebody can post news articles from the sentosa nurses' side, which can hopefully shed light on the issue. i'm not sure they can talk though, if the case is sub judice.

which was why the news articles were all about the court decisions.

pinoy_guy · Sep 12, 2007

poea clears sentosa of illegal recruitment raps

last updated 01:22pm (mla time) 09/11/2007

apologies to the mods for lengthy quotes, as articles posted on philippine news agency websites have a tendency to disappear after some time.

the poea released its meticulously penned decision, answering all the charges point-by-point.

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the philippine overseas employment administration (poea) has "dismissed for utter lack of merit" charges of illegal recruitment, misrepresentation, and contract substitution filed against sentosa recruitment agency by 26 filipino health professionals.
"in this instant case however no regulation on overseas employment was violated by the respondents in the recruitment and deployment of the complainants to its principal in the united states. wherefore, premises considered, these cases are hereby dismissed for utter lack of merit."

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this follows the august 31, 2007 decision of the us department of justice's office of the special counsel dismissing the discrimination case filed by the same health professionals in the us, which their lawyer said has already been rendered moot and academic as the us doj's office of the chief administrative hearing officer (ocaho) took jurisdiction over the complaints.

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on the illegal recruitment charge, the poea ruled that it "cannot impute any malice or bad faith against the respondents because, as admitted by the complainants themselves, the recruitment was totally at no cost to them and they were all grateful."
"they, however, justify their actions by saying that they are concerned more for the protection of other nurses who are yet to be hired against the exploitative and discriminatory practices of the respondents," it added.

citing its own records, poea said that since 2004, sentosa has deployed a total of 302 nurses, "totally at no cost to the workers, all using eb-3 immigrant visa."

now, sentosa has 2,196 job orders for the positions of nurse, nurse staff, therapists, healthcare worker, and clerks for the operations of its principal, the sentosa care llc and its affiliated companies in the united states.

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"as to alleged misrepresentation relating to publication of false information, this administration finds that no such false information was published in flyers or advertised in the websites that will constitute the alleged misrepresentation," the decision read.
..."clearly reveals the full disclosure by the agency about the corporate setup between the sentosa care llc, otherwise known as the sentosa care group, and its affiliated companies as the direct employers."

...

"furthermore, the affiliates where complainants in this case were supposed to work, and where they actually worked, are all duly accredited with the poea," it said.

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the complainants also said they were made to work as agency employees and not as direct-hired employees, in violation of their contract.
"let it be correctly stated that since all of them were hired by the sentosa recruitment agency, they are agency-hired for purposes of poea rules and regulations as distinguished from direct-hired where recruitment is done with no third-party intervention either through a local agency in the philippines or a foreign placement agency in the host country," the poea said.

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on the allegation that the complainants did not get their salaries from sentosa, the poea accepted sentosa's explanation that this is so because its payroll, purchasing, and other administrative operations have been outsourced.
"these explanations remained unrebutted by the complainants despite vast opportunity to refute the same," the poea ruling said.

"we did not find it difficult to understand this outsourcing scheme considering the complexities of modern corporate setup and the rise of big businesses, making such outsourcing scheme an acceptable and sound business practice, not prohibited by law," it added.

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on the complaint that sentosa failed to pay the health professionals the published hourly rates of $22 to $35, the poea cited the pay stubs attached to the complainants' affidavit-complaints which showed "that upon release of their permits to work, they actually received salaries of $22 per hour which were increased up to $25.5 per hour as they progressed with their work."
that the complainants received $12 to $14 per hour only during the brief transition before they obtained permits to work "appears reasonable because as immigrant nurses, complainants cannot practice their professions or work without the permit to work required by us regulations," the poea said.

for other disagreements in the computation of overtime pay and night shift differentials, the poea said it is beyond their jurisdiction and should be decided by the national labor relations commission.

this little quote threw me off: "they, however, justify their actions by saying that they are concerned more for the protection of other nurses who are yet to be hired against the exploitative and discriminatory practices of the respondents."

I think they should ask the nurses still in the philippines first, before deciding to act in their "concern more for the protection of these nurses yet to be hired against the exploitative and discriminatory practices of the respondents."

somehow I don't think the nurses in the philippines appreciate the noble gesture.

pinoy_guy · Sep 12, 2007

poea junks raps vs sentosa

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the philippine overseas employment administration (poea) on Tuesday dismissed charges filed by 26 filipino nurses and a physical therapist against sentosa recruitment agency in the philippines and sentosa care llc in new york, united states.

pinoy_guy · Sep 12, 2007

migrante raps poea ruling on 'sentosa 27'

last updated 11:22pm (mla time) 09/12/2007

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migrante chair connie bragas-regalado refused to accept the ruling of poea administrator rosalinda dimapilis-baldoz that found no merit in the complainants' charge of recruitment law violations against sentosa.
"mrs. baldoz exacerbates the injustices already suffered by theses nurses and health professionals. the collusion between poea and sra in this case is palpable. sentosa is clearly guilty of misrepresentation, contract substitution and a range of contract violations," regalado said in a statement.

the complainants -- dubbed the "sentosa 27" -- were recruited from manila to work in the us by sra. they walked out of their work places in April 2006 and filed charges against sra, accusing the firm of misrepresentation in their recruitment, substitution of contracts, withholding of salaries and other recruitment law violations.

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regalado called the timing of the poea decision "highly dubious."

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"after sitting on the case for more than a year, it's suspicious that the decision comes out more days after sentosa's spin that the discrimination charge against them was dismissed in the us," she added.

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regalado, however, said the complainants' lawyer felix vinluan has denied the reported us doj decision.
"the reports [of the charges being dismissed] are misleading and untrue. far from being dismissed, the discrimination cases are now with the us doj's office of the chief administrative hearing officer," she quoted vinluan as saying.

pinoy_guy · Sep 18, 2007

poea clears recruitment agency sued by nurses

by: mayen jaymalin, philippine star: 9/12/2007

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[poea chief rosalinda] baldoz said the complainants can still appeal the decision but sentosa said the ruling only proved that the filipina nurses were ill-advised and misled by some unscrupulous persons who took advantage of them with a promise that they can get out of their contracts and work with another company.

pinoy_guy · Sep 29, 2007

court upholds charges against filipino nurses

9:14 pm edt, September 28, 2007

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a state supreme court judge Friday denied a motion to dismiss charges against 10 filipino nurses accused of conspiracy and endangering the welfare of children after they resigned en masse at a smithtown nursing home.

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"the decision speaks for itself," said assistant district attorney leonard lato. "they quit under circumstances they knew could endanger the welfare of others and they just didn't care."

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supreme court justice robert doyle also denied a motion to dismiss charges of conspiracy and criminal solicitation against felix vinluan, the nurses' lawyer. the charges say he told the nurses to quit.

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doyle wrote in his response to vinluan's motion that "the action of these defendants, acting together with forethought and planning, was not a simple resignation."
the next hearing is scheduled for oct. 29; lawyers said they anticipate a late January trial date.