Mitchell H. Rubinstein[*]
Imagine that a group of foreign registered nurses approaches you because they feel abused and want to quit their jobs. They signed an employment contract with a $25,000 liquidated damage provision agreeing to remain employed for three years and are unsure of their rights. You advise your clients that they have the right to quit, and after they act on this advice, you find yourself at the center of a massive criminal and civil controversy. Both you and your clients are criminally charged with endangering the welfare of patients and related crimes because the nurses resigned en masse without notice. This may seem strange in light of the Thirteenth Amendment’s ban on involuntary servitude, but in 2007, this happened to ten nurses and their lawyer.
There is a serious shortage of Registered Nurses in this country, and as a result, nurses are widely recruited from the Philippines to work in hospitals and nursing homes. The nurses in question were sponsored immigrant workers from the Philippines working legally in the United States. As part of their sponsorship, all had signed identical employment agreements. These contracts required the nurses to remain employed for three years and included a $25,000 liquidated damages provision.
After the nurses resigned on April 7, 2006, various legal proceedings involving the nurses and their attorney, Felix Vinluan, began. Most notably, a claim of patient abandonment was filed with the New York State Education Department, which regulates the nursing profession, although that charge has since been dismissed. Nevertheless, a Grand Jury indicted the nurses on eleven counts of misdemeanor crimes, including endangering the welfare of pediatric patients. The indictment also charged their lawyer with conspiring to commit these crimes, alleging that he advised the nurses to resign en mass without notice. Significantly, the indictment does not allege that any shift at the nursing home went uncovered or that any child was actually harmed as a result of the nurses’ resignation.
In September of 2007, the court denied motions to dismiss for insufficient evidence filed by both Vinluan and the ten nurses. With regard to Vinluan, the court emphasized the fact that the mass resignations could have had disastrous consequences because many of the nurses’ patients were gravely ill. With regard to the nurses, the court rejected the claim that under the Thirteenth Amendment a person cannot be criminally punished for quitting her job. The court interpreted the charges as not punishing the nurses for simply resigning, but because they resigned en masse, which the prosecution argued, endangered their patients. Vinluan and the nurses successfully brought a proceeding to stay their criminal prosecutions pending a determination on whether the trial court correctly denied the motions to dismiss. On January 13, 2009, the Second Judicial Department of the Appellate Division reversed the lower courts and held that neither the nurses nor their attorney may be criminally prosecuted.
This Essay examines this troubling case and the public policy issues that it highlights. Part I reviews the nature of employment contracts and concludes that the Thirteenth Amendment and related legislation prohibit enforcing the nurses’ three-year time commitment through specific performance. Part II examines whether criminal prosecution of the nurses is preempted by the National Labor Relations Act (NLRA) and concludes that criminal prosecution is preempted because it interferes with the free play of economic forces that NLRA aims to protect. Part III explores legal issues surrounding the criminal prosecution of an attorney based on advice he may have given. The Essay concludes by explaining that the liquidated damage provision, which may have sparked this entire controversy, was probably unenforceable as a penalty, that the criminal prosecution was unwarranted, and that the Appellate Division’s decision was correct.