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February 27, 2008
Attorney Prosecuted After Clients Walk Off Job
Just when you think you've seen it all, along comes a case like this. The facts and intrigue behind what may be going on seems quite complicated, but the bottom-line is that an attorney and his clients are facing criminal charges after they walked off their nursing job at a facility that had several ill children. The story is from law.com (courtesy of the New York Law Journal)--I'm only giving the basics, but it's definitely worth reading the entire article:
A lawyer who advised 10 nurses that they were free to quit their jobs at a Long Island nursing facility now faces 13 criminal charges as a result of the nurses' walkout -- a prosecution his supporters say could have a chilling effect on attorneys who represent workers in labor disputes. [T]he Suffolk County district attorney's office claims that the nurses endangered five chronically ill children and one terminally ill man when they left their posts without giving sufficient notice to administrators to find replacements. Assistant District Attorney Leonard Lato said in an interview that [Felix Q.] Vinluan was indicted along with his clients because he did more than just advise his clients of their rights.
The nurses, who had been in the country since 2005, complained to Vinluan about substandard pay, shabby living conditions, changes in work assignments and other violations of their three-year contracts. "I advised them they could resign if they wanted to as their contracts were already breached," said Vinluan. "I told them 'you are at-will employees and you can be terminated at any time, [so] in the same way you can terminate your employment.'" "He adamantly denies telling them to resign," said Oscar Michelen, a partner at Sandback, Birnbaum & Michelen in Mineola, N.Y., who is representing Vinluan. "He told them they could resign." Three of the nurses named in the indictment -- Harriet Avila, Claudine Gamiao and Juliet Anilao -- also denied in an interview that Vinluan encouraged them to quit.
According to the district attorney's office, on April 6, Vinluan filed a discrimination complaint on behalf of the nurses against Avalon Park and SentosaCare at the U.S. Department of Justice in Washington, D.C. Late in the afternoon of April 7, the nurses who had met with Vinluan submitted their resignations. In September 2006, the state Education Department, after two hearings, rejected SentosaCare's complaints that the nurses had abandoned patients. According to The New York Times, a Health Department review concluded in January that shifts had been covered. Nevertheless, on March 22, 2007, a grand jury indicted Vinluan for participating in a conspiracy to obtain "alternative employment" for his clients and a release from their three-year commitment "without incurring a financial penalty of $25,000" provided in their contracts for breaching the agreement.
Vinluan and the nurses each were charged with a single count of conspiracy in the sixth degree, five counts of endangering the welfare of a child, and six counts of endangering the welfare of a physically disabled person. In addition, Vinluan was charged with solicitation in the fifth degree. That offense is aimed at defendants who, with intent that another person commit a crime, "solicits, requests, commands, importunes or other attempts" to cause that person to commit the crime.
A telling sign is the prosecutor's explanation for why he ultimately brought the case before the grand jury. He stated that he initially did not think that an indictment was warranted because after interviewing the nurses "they seemed like hardworking, good people." But "when I went into the nursing facility and I saw the children -- I'd never seen children on ventilators -- my feelings changed about the case." The grand jury indicted them and a judge, rejecting arguments for dismissal by the defendants, has set a trial date.
So, when do you think that the DA's office is going to prosecute an employer who terminates without notice an employee with a severely ill child?
Hat Tip: Jason Walta
-JH
February 27, 2008 in Labor and Employment News | Permalink
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Comments
Well, if the employer terminated the employee without notice for the express purpose of hurting the employee, and with full intent that the child be endangered, I would say that the DA would bring charges fairly quickly. A negligence claim wouldn't be amiss, either.
These employees didn't just quit - they quit in order to make a statement, by causing the employer to panic and scramble to have to find coverage. Obviously, the employer did find coverage, so the children were not endangered, but the point of their message was the same. "You don't want to pay us or give us the benefits that we think we deserve? Fine! Then how will you deal with NONE of us being here? Who will take care of the children now?"
Had it been a widget factory, that would have been one thing. But caring for children on ventilators? Both management and labor (organized or not) have economic weapons that they can use - and if they abuse those weapons to the detriment of the innocent, I don't think sending it to a Grand Jury is inappropriate...
Posted by: Tor | Feb 27, 2008 3:46:56 PM
That's the point--they didn't endanger the children or any other patients. And, although I didn't read anything specifically in the story on this, I'm guessing that they're like all other nurses and would never have done this if they thought there was a chance of harm. Especially given the burden of proof in a criminal case, that seems to make this a slam-dunk for the defense.
Posted by: Jeff | Feb 27, 2008 8:15:13 PM
Well, I don't think you can assume either way. If one or more (or all) of the nurses was scheduled for the morning after they quit, I think that could be considered endangerment. If they had made sure that there was coverage before they quit, then less so. I would like to give them the benefit of the doubt, that they are like 'all other nurses' and would never do anything that would create a chance of harm, but I assume that, at least in part, will be what the grand jury will be looking at.
There are consequences and repercussions for everything we do, and if you are going to engage in a mass walk out like that, you have to take responsibility for the consequences.
I've seen and heard about several mass walk-outs, and in every case, part of the purpose was to hurt the employer. In this case, why not give the employer a week's notice? It would be nice to assume that they ensured that there was no chance of collateral damage to the patients, but I don't think the DA can make that assumption and be fair to the patients.
Posted by: Tor | Feb 28, 2008 9:25:45 AM
Well it would be an interesting protected concerted case if the nurses had struck rather than quit, assuming this was a private sector employer. This would be a tough constructive discharge case. (I'm not sure if 8(g) notice issues would have come into play). Also, if there is no theory that the conduct was protected it probably takes preemption off the table. It is undeniably another proud moment for American labor law - import low paid, non-union labor and when the serfs rebel sue them. It sounds like a lot of things these days - vaguely 19th century.
Posted by: Michael Duff | Feb 28, 2008 8:51:41 PM
Tor. I really don't get where you are coming from. The nurses have no legal obligation (as opposed to an ethical one) to their patients. Their obligation is to their employer and it is the employer that has an obligation to the patients. This is in perfect evidence by the fact that the employer did go out and find the people to cover.
To my mind, this is just an abuse of power on the DA's part. If the legislature wants to step in an require nurse to giver two weeks notice as a matter of public policy, they are free to try and do that. But to charge them criminally is just plain wrong.
Posted by: Daniel T | Feb 28, 2008 9:02:23 PM
No one, as far as I know, is saying that nurses must give two weeks notice. But take the case of a home health care worker, with a patient on a ventilator. If the home health care worker decided half way through his or her shift that they were done working this hard for so little money, and walked out the door, calling the employer on the way out to say that they were quitting, I don't see how that is NOT endangering the patient, even if the employer had an obligation to replace the home health care worker.
That's an extreme example, but maybe you (Daniel T) feel that the employee's right to quit trumps anything else in any case.
But if you think that my example is too extreme, where is the line drawn? It's ok so long as it is not during your shift? So 15 seconds before you are supposed to show up is ok?
I'm not saying that the nurses in this case deserve to be prosecuted, and that is not what is happening at this point. It is going to a grand jury to determine if a crime has been committed. Maybe it has, maybe it hasn't, but I don't doubt that there is a line where, by quitting without notice, a nurse can be liable for endangering a patient.
And I do think there is a legal obligation here. A passerby on the street cannot be held liable for the patients that the nurses were caring for, but the nurses were not bystanders. The kids on ventilators especially, are in a constant state of needing aid. If you choose to do nothing, there is no liability. But if you choose to help, you can be found to have been liable for your acts, if you act negligently. Did these nurses have a duty to aid these patients - a duty to not take actions that would be otherwise legal but would now result in danger to patients? I don't think you can treat them like widget makers - they had duties and obligations that most of us don't have.
I have no doubt that 24 hours notice would be more than sufficient for a single resigning nurse. But if the ten that quit constituted a majority of the staff, or outnumbered the relief nurses on call, I don't think that it is an easy call at that point.
And as a practical matter, assuming no criminal charges get filed, for those people crediting these nurses with common sense, what do you think they are going to do for their next job? When they apply, and the employer calls for a reference, will they get hired? Or simply googles their name, and sees that they were involved in this case. I can't say that I would be eager to hire someone who walked off their last nursing job without notice, especially if I knew that I might be the next person scrambling to find a replacement a few hours before her shift was supposed to start.
24 or 48 hours notice would have given the employer more than enough time to cover their shifts, at little to no cost to the nurses. Or even zero hours notice if they had quit just before taking a scheduled day off. But they wanted to make a point...
Posted by: Tor | Feb 29, 2008 4:07:00 PM
The moral of the story - you get what you pay for.
Posted by: Michael Duff | Mar 1, 2008 11:18:12 AM
Tor. To my mind you are confusing legal and ethical obligations. I think it is an ethical violation for a nurse to just walk out on a person they are caring for. They have chosen that profession and have an obligation to the profession. I can see, for example, the board that certifies nurses suspending their nursing license for six months.
But I cannot see a criminal violation. The nurses legal duty is to the employer. The home-care patient does not hire a nurse, they hire an employer to provide them a nurse. So if the nurse just walked out in the middle of the day, the employer is still responsible. Now, I suppose I could see a reckless endangerment charge if the nurse walked out and never told anyone and the patient suffered some harm. Put that is not the fact pattern here.
Posted by: Daniel T | Mar 1, 2008 7:17:01 PM
Just wanted to fill in some facts about this case. I represent the lawyer who is indicted in the matter. 8(g) notice does not apply as 8(g) only applies to unionized nurses which these were not. Therefore NLRA says they do not have to give notice. No nurse walked off a shift, some gave as many as three days notice. The last nurse to resign stayed on an additional four hours because she had previously promised to do so even though her replacement came on time at the end of her shift. Today I filed a writ of prohibition in the appellate court asking them to dismiss the case as it is preempted by the NLRA and as it violates the 13th and 1st amendments. The case against my client is even thinner than the thin case against the nurses. All he did was give them legal advice. I'll keep you posted on what happens. The writ gets fully submitted on April 3 2008.
Posted by: Oscar M | Mar 20, 2008 10:18:27 PM
