Felix Vinluan, legal counsel for the Avalon 10 – the Filipino nurses in New York who were charged last year with endangering their patients through abandonment of duty – happily told this reporter that the case filed against them were dismissed by the Second Department of the New York (NY) Supreme Court.
“Finally, the Court heard and agreed with our arguments that prosecuting me and the nurses violated our constitutional rights,” Vinluan said.
The decision was released on Jan. 13, 2009, or almost six months after Vinluan and his clients – who are known as the Avalon 10 because they used to work at the Avalon Gardens health facility – petitioned against their accusers.
Gina Garboni, secretary-general of Migrante International, agreed with Vinluan that with the legal victory, the Avalon 10 has been vindicated.
‘This victory is, indeed, a vindication for the nurses,” Gaborni said. “This is a glimmer of hope for migrant workers who are up against an unscrupulous giant such as Sentosa Care.”
Elated, yet feelings are ambivalent
However, the lawyer said, his feelings are quite ambivalent for he believes that the persecution against them – who are the real victims of injustice and discrimination in the Land of Milk and Honey – will not stop and the full measure of justice has yet to come.
“While I may be elated and feel vindicated about this decision, I would like to say that my feelings are quite frankly ambivalent. For I know that even with the issuance of this decision, the people who caused this prosecution and who committed the acts of illegal recruitment, fraud in the immigration process, human trafficking and involuntary servitude, are still out there – perhaps victimizing more of our fellow kababayan (compatriots) who would like to migrate to the United States to better their and their families’ lives. This Enterprise continues with its operations, no thanks to the POEA (Philippine Overseas Employment Administration) and the powers that be that rescinded the suspension order of Sentosa Recruitment Agency (SRA),” he said.
Gaborni went further, saying, “The Sentosa Recruitment Agency must be shut down!”
No abandonment of duty
“The New York State Education Department ruled that our nurses did not abandon their patients. The Court (Appellate Division) ruled that our nurses did not commit the crime of endangering the welfare of their patients. In fact, the Court made findings of fact that support our nurses’ contention that they were hoodwinked by their recruiter and its US nursing home-principals into believing that they would be directly hired. However, they were actually made agency nurses of Sentosa Services or Prompt Nursing Employment Agency. Thus, the nurses’ contracts were breached by the contracting nursing homes. “Not having signed any contract with Sentosa Services or Prompt, the nurses had at-will employment with their actual employer (Sentosa Services). And being at-will employees, they could resign anytime,” he explained to this reporter.
In a 13-page decision, Justices Fred T. Santucci, J.P., Daniel D. Angiolillo, and Cheryl E. Chambers, said that the Avalon 10’s rights, pursuant to the Thirteenth Amendment of the US Constitution, had been violated.
“Guided by these principles, we conclude that this is not an exceptional case justifying a restriction of the petitioners’ Thirteenth Amendment rights,” read a part of the decision.
“The nurses in this case were engaged in private employment rather than the performance of public service. Moreover, while they possessed the education and training necessary to care for chronically ill patients, including children on ventilators, these skills are not so unique or specialized that they cannot be readily performed by other qualified nurses. Furthermore, although an employee’s abandonment of his or her post in an ‘extreme case’ may constitute an exceptional circumstance which warrants infringement upon the right to freely leave employment, the respondent District Attorney proffers no reason why this is an ‘extreme case’,” the ruling further read.
The justices also said, “District Attorney [John Spota] does not dispute that Vinluan acted in good faith (in advising the nurses, legally), but urges this court to conclude that his legal advice to the nurses was not constitutionally protected because he advised them to commit a crime. However, since the nurses’ conduct in resigning cannot, under the circumstances of this case, subject them to criminal prosecution, we cannot agree that Vinluan advised the nurses to commit a crime.
“More importantly, regardless of whether Vinluan’s legal assessment was accurate, it was objectively reasonable. We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect. Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice. The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing. A looming threat of criminal sanctions would deter attorneys from acquainting individuals with matters as vital as the breadth of their legal rights and the limits of those
rights. Correspondingly, where counsel is restrained, so is the fundamental right of the citizenry, bound as it is by laws complex and unfamiliar, to receive the advice necessary for measured conduct.”
The justices also explained that, by placing an attorney in the position of being required to defend the advice that he or she has provided, the state compels revelation of, and thus places within its reach, confidential communications between attorney and client.
“Such communications have long been held to be privileged in order to enable citizens to safely and readily secure “the aid of persons having knowledge of the law and [skill] in its practice,” the decision said.
Cases in the Philippines all dismissed
Vinluan said that though they have gained victory in their fight in the US, in the Philippines this is not the case.
He told this reporter that he and the Avalon 10 had filed the following cases in the Philippines:
1) POEA (Philippine Overseas Employment Agency) cases – violation of POEA rules and regulations, such as misrepresentation in the recruitment process and contract substitution;
2) NLRC (National Labor Relations Commission) cases – money claims and constructive dismissal, which were assigned to the Executive Labor Arbiter; and
3) DoJ (Department of Justice) cases – complaints for illegal recruitment against SRA, Francis Luyun and his officers/employees and primary principal.
“After the POEA issued a preventive suspension order against Sentosa Recruitment Agency, Senator Charles Schumer wrote POEA Administrator Rosalinda Baldoz, then Labor Secretary Pat Sto. Tomas and President (Gloria Macapagal-)Arroyo. It was after these letters were received by government officials that then-Presidential Chief of Staff, Sec. Michael Defensor, called up NY Consul-General (Cecilia) Rebong and then POEA Administrator (Rosalinda) Baldoz. Soon thereafter, the preventive suspension order was lifted,” Vinluan said, recalling what happened more than two years ago.
Furthermore, he said, the POEA dismissed the first batch of complaints as it found that SRA allegedly had a “recruitment agreement” with Sentosa Care, LLC. Sentosa Care, LLC is a healthcare management company and has several affiliated nursing homes. The POEA ruled that inasmuch as all the affiliates of Sentosa Care, LLC are “identified and listed in the official website of Sentosa Recruitment Agency and Sentosa Care, LLC, Filipino nurses were thus notified that they were going to work for the “healthcare group.” In essence, it ruled that it was all right for SRA to deploy any of the nurses to any of the affiliates of Sentosa Care, LLC.
“In our appeal to the Labor Secretary, we argued that the records of the case show no recruitment agreement between Sentosa Recruitment Agency and Sentosa Care, LLC. In fact, Sentosa Care, LLC is not even one of the accredited principals of Sentosa Recruitment Agency. The nurses individually signed employment contracts with a particular principal (nursing home) of Sentosa Recruitment Agency. Thus, they expected to work for that particular nursing home principal of Sentosa Recruitment Agency. As correctly found by the NY Appellate Division, the nurses were instead made agency nurses of an employment agency,” the lawyer explained.
He even said he has doubts as to whether Labor Secretary Marianito Roque (former chief of the Overseas Workers Welfare Administration or OWWA), or Baldoz (former head of the POEA) or even the new POEA Administrator Jennifer J. Manalili could produce any copy of a supposed recruitment agreement between SRA and Sentosa Care, LLC when asked to do so.
“I am pretty sure they cannot produce one (not unless they had already manufactured one). Whether they are able to produce one or not, ask them further: at what stage of the proceeding was that recruitment agreement ever submitted or filed? For as far as we know, we never received a copy of said recruitment agreement (if ever SRA submitted one) during the proceedings,” he said.
He even told this reporter to compare POEA’s factual findings with the findings made by the NY Appellate Division.
“The Appellate Division found that ‘… each of the nurses signed an employment contract with the specific nursing homes for which they had been selected to work…’ When the nurses arrived in the United States, they learned that they would be working for an employment agency instead of the specific nursing homes they had signed contracts with,” stressed Vinluan.
“The Executive Labor Arbiter, on the other hand, made even more-aggravating findings when she ruled that the nurses, by resigning, pre-terminated their employment contracts, and that the nurses in fact had an obligation to give two-weeks notice. We likewise appealed to the NLRC (the Commission), and argued that the employment contracts were indeed breached, not by the nurses, but by the contracting nursing home employers. The nursing home principals of Sentosa Recruitment Agency did not provide employment to any of the nurses. The nurses found employment with the nursing employment agency. There being no employment agreement between the nurses and the employment agency, their relationship was an at-will employment. The NY Appellate Division correctly ruled that the nurses’ employment was ‘employment at will’,” he further explained.
Moreover, Vinluan said, the Office of the Labor Secretary and the NLRC are presently sitting on the appeals.
“In fact, there are three other batches of complaints filed before the POEA adjudications office which are likewise in limbo. It really seems that the ordinary, not politically-connected Filipino, cannot secure justice in his own country. And to think that the government takes pride in our overseas foreign workers as the new heroes of the country,” he said.
He said that they plan to litigate the civil cases pending in New York and the federal discrimination cases they filed in Washington, D.C.
N.B. This is a follow-up story of the one I have written in 2008 (see, Delayed Justice for Sentosa 27++, which also appeared in Bulatlat.com. To date, the said nurses are still fighting for their rights and welfare in the Land of Promise: the United States of America.
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