Attorney Representation of Badly Treated Immigrant Para-Medical Workers

January 21, 2009

nurse_pt1I read this post by Jeff Lipshaw from the Legal Profession Blog with great interest. This is especially so because our law office is currently handling almost the exact same kind of case. Lipshaw was discussing a recent Law Review article on the topic entitled: Lawyer’s Worst Nightmare: The Story of a Lawyer and His Nurse Clients Who Were Both Criminally Charged Because the Nurses Resigned En Mass.

The abstract of that article, as quoted in the Legal Profession post is as follows:

Imagine that a group of foreign registered nurses approach their lawyer because they feel abused and want to quit their jobs. They signed an employment contract agreeing to remain employed for three years and are unsure of their rights. The contract that they signed also contains a $25,000 liquidated damage provision. The lawyer advised his clients that they have to right to quit, and after they quit, the lawyer and his clients find themselves at the center of a massive criminal and civil controversy. Both the lawyer and his clients are criminally charged with endangering the welfare of critically ill pediatric patients and related crimes because the nurses resigned en masse without notice. You might think that such a case could not arise in Twenty-First Century America, but in 2007 that is exactly what occurred in Suffolk County New York and resulted in a New York appellate court having to prohibit the criminal prosecution of both the nurses and their attorney. Matter of Vinluan v. Doyle, ___A.D.3d___, 2009 WL 93065 (2d. Dep’t. Jan. 13, 2009).

This Essay examines this troubling case, where the court held that such a prosecution offended the Thirteenth Amendment and the attorneys First Amendment right to provide legal advice to his clients. This Essay explores the public policy issues raised by this case, whether nurses have the same right to withhold their labor as other employees, as well as certain issues which the court did not reach such as whether criminal prosecution of the nurses is preempted by the National Labor Relations Act. Additionally, this Essay explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given which the court ultimately found to be “profoundly disturbing.” The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, another issue not reached by the court, that criminal prosecution of both the nurses and their attorney was unwarranted and that the Appellate Division decision was correctly decided.

I would add that in addition to the invalidity of the $25,000 liquidated damages charge that these type of nurses/physical therapists/etc. are typically subject to, these contracts usually provide that the employee must meet all of the ethical and good-care obligations of her profession. Very often, the health care assembly line operations that employ these immigrant health care workers force them to violate their own professional standards or face the $25,000 penalty for quitting. Such practices are thus not only unethical, they also constitute a breach of the very contract under which they seek to sue their former employees.

These are all factors to consider when an immigrant health care worker is seeking the advice of an attorney and considering quitting due to untenable working conditions.

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2 Responses to “Attorney Representation of Badly Treated Immigrant Para-Medical Workers”

  1. Elliot, thank you for citing my article. I have to comment on what you have written-just a bit. I do not believe there is anything wrong with an employment contract requiring nurses or other professionals to comply with professional codes of ethics. However, if the working conditions the nurses face are indeed extreme, that may be a defense to the breach of contract action.The Vinluan case did reach that issue. The court only held the nurses could not be prosecuted criminally. Second, I think we have to acknowledge that the responsibilities of nurses caring for critically ill patients is different from ordinary employment. Here, the nurses did not inflict danger or any harm, but the court left the door open that in another case the result may be different. In this case, the State Education Department (which regulates the nursing profession) also investigated the incident and did not prefer any charges or proceedings against the nurses.

  2. Thank you for being my first commenter. I certainly don’t have any issue with the employment contract including an obligation by the employee to keep her profession’s code of ethics either. On the contrary, I think that’s definitely a good thing. Like you said though, I am bringing it up only in order to show the employee’s potentential defense to breach of contract by the employer. This can be considered a case of an employer forcing the employee to violate those same ethics that she is not only professionally bound to keep as a licensed health care worker, but which are also part of the employment contract, as you said.

    As as you also pointed out, that issue was not reached in the case you cited because it dealt with whether the nurses’ abandonment of their patients consitutes criminal negligence, especially they way they did it; en masse. Which is why Nurses/PTs/OTs/etc. and the attorneys advising them must be *very* careful when advising them what to do, which was your main point in bringing up the case as well I think.

    My point is that in a breach of contract action by an employer in a case like this for the $25,000 “liquidated damages,” there are many angles that the nurses’ attorney can take in defending such an action, depending on the facts of course.

    -Benjamin Wolf

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