involved in Matter of Vinluan v. Doyle (N.Y. App. Div. Jan. 13):
Ten nurses, all from the Republic of the Philippines, are under indictment in Suffolk County for the misdemeanor offenses of conspiracy in the sixth degree, endangering the welfare of a child, and endangering the welfare of a physically-disabled person. The prosecution of these individuals came in the aftermath of their simultaneous resignations from positions at a Long Island nursing home. [The amount of notice provided before the next scheduled shift for each nurse ranged from 8 to 72 hours.] The attorney who provided these nurses with legal advice was also indicted....
[T]he indictment handed down against the petitioners explicitly makes the nurses' conduct in resigning their positions a component of each of the crimes charged. Thus, the indictment places the nurses in the position of being required to remain in Sentosa's service after submitting their resignations, even if only for a relatively brief period of notice, or being subject to criminal sanction. Accordingly, the prosecution has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will. The imposition of such a limitation upon the nurses' ability to freely exercise their right to resign from the service of an employer who allegedly failed to fulfill the promises and commitments made to them is the antithesis of the free and voluntary system of labor envisioned by the framers of the Thirteenth Amendment. While we are, of course, mindful that protecting vulnerable children from harm is of enormous importance, the fact that the prosecution may serve a legitimate societal aim does not suspend the nurses' constitutional right to be free from involuntary service.
We are also cognizant of the fact that Thirteenth Amendment rights are not absolute, and that "not all situations in which labor is compelled ... by force of law" are unconstitutional. It has been recognized that the Thirteen Amendment "was not intended to apply to exceptional cases well established in the common law at the time" of its enactment. Thus, the Amendment has been held inapplicable to a narrow class of civic duties that have traditionally been enforced by means of imprisonment, including military service.... [A]n individual's right to be free from involuntary service may be limited in "exceptional cases, such as the service of a sailor ... the obligations of a child to its parents, or of an apprentice to his master, or the power of the legislature to make unlawful and punish criminally an abandonment by an employee of his post of labor in any extreme cases."
Guided by these principles, we conclude that this is not an exceptional case justifying a restriction of the petitioners' Thirteenth Amendment rights. 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 nurses did not abandon their posts in the middle of their shifts. Rather, they resigned after the completion of their shifts, when the pediatric patients at Avalon Gardens were under the care of other nurses and staff members.
Moreover, while the indictment alleges that the nurses collectively resigned "knowing that their resignations and the prior resignations at other Sentosa Care facilities would render it difficult for Avalon Gardens to find, in a timely manner, skilled replacement nurses for Avalon Gardens' pediatric patients," it is undisputed that coverage was indeed obtained, and no facts suggesting an imminent threat to the well being of the children have been alleged. Indeed, the fact that no children were deprived of nursing care played a large role in the Education Department's decision to clear the nurses of professional misconduct. Under these circumstances, we cannot conclude that this is such an "extreme case" that the State's interest in prosecuting the petitioners for misdemeanor offenses based upon the speculative possibility that the nurses' conduct could have harmed the pediatric patients at Avalon Gardens justifies abridging the nurses' Thirteenth Amendment rights by criminalizing their resignations from the service of their private employer.
Note that the Thirteenth Amendment argument rests heavily on several Supreme Court cases from the first half of the 1900s, such as Pollock v. Williams (1944). There's also a passage on lawyers' First Amendment rights to offer objectively reasonable advice to their clients: "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."
Related Posts (on one page):
- The so-called "Lochner Court" and the Thirteenth Amendment:
- The Thirteenth Amendment,
I have an idea that half the Bush legal team just became huge fans of the NY Appellate Division.
But in this case, that sort of imminent danger to others did not exist. For sufficient money, you can hire any sort of temp nurse you want. If you demand notice, you get a contract with severe penalties for non-compliance and you pay accordingly. Otherwise, you are paying for something you don't get.
Involuntary servitude sucks.
Come again? If I violate one of my company's policies, then can sue me for breach of contract, if I'm an at-will employee? I'm as pro-business as they come, but if a company isn't required to give me notice to terminate me, I'm not required to give them notice if I quit. Ever heard of a contract? Thats something that both parties sign and that there is some sort of consideration granted.
I think yes.
Company policy changes with the wind. It can say anything.
Even if this is true, a grand jury returned an indictment.
Further evidence of the adage that a grand jury will indict a ham and cheese sandwich if a prosecutor asks.
The 10 nurses should have met with the nurse manager (or equivalent), explained their grievances, and either proposed changes that would address their grievances or announced that they all would quit in two weeks. Unless conditions are acutely atrocious, there is no point to quitting with almost no notice. That's what led to the charges and indictments (right or wrong).
That's a ham sandwich: a ham and cheese sandwich would also face conspiracy charges.
Seriously, the only rational explanation for these charges is that the DA is corrupt; I'm sure the NYS Bar, urged on by an outraged Court, will be looking into that Real Soon Now.
"Yes, it's not justified to shoot someone who talks in the movie theater... but we all need to realize talking in the movie theater is really annoying."
So what? That's absolutely no justification for a bizarre attempt at putting these nurses in prison. Nobody cares if they are apparently not in the running for good employee of the year. Sticking it back to an employer who has wronged you is a grand old American tradition. It only becomes a crime when you stick it to somebody who's politically connected, and that is the point of this story.
The duty on the one then present, at the patient's bedside is established by their very presence. They cannot leave if their replacement fails to show.
The replacement (the ones charged in this case) had no immediate practitioner-patient relationship, and cannot be guilty of patient endangerment/abandonment unless the workers on the previous shift actually abandon the patients.
Given that, they claim that they feared retaliation if they gave two week's notice. At least now the retaliation appears legal and not physical.
That only works if the nurse manager isn't part of why the nurses have grievances. Since they are a part of the nursing home's management, they are most often part of the problem.
My Filipina sister-in-law came to the US in late 1999 to work as nurse. She worked at a nursing home in Miami Beach. In October 2000, the corp. that owned the home and employed Leonette, began bouncing payroll checks. Obviously a breach of contract by the employer. When the nurses complained to the Nurse manager, they were told to work and shut up, or immigration would be called. Which was an empty threat meant to intimidate the nurses. It didn't work. The employer actually gave my sister-in-law a second worthless check(We checked with the bank that it was drawn on before depositing it. There was insufficient funds.)
Don't think this nursing home in New York didn't try similar tactics. There had to be an awfully good reason for the nurses to quit like they did.
This isn't a criminal matter.
In the linked article it explains that the nurses were afraid of retaliation if they gave notice. FWIW.
Moreover, if a contract states 2-week notice, that is certainly not unconscionable. IMO, the nurses that walked out contrary to their contractual obligations ought to be financially responsible for whatever it cost the home to arrange for adequate staffing during those two weeks.
You also imply that management's conduct is irrelevant in a question as to whether the nurses have to show up at their place of employ? How does that work? It's one thing to say that when the nurses are in the presence of the person in their care, they cannot abandon that person, but where is the legal duty to show up and help the patients? The employment relationship with the employer that has arguably been severed by the breach caused by the employer? That seems far-fetched.
That part of the opinion makes it seem that no patients were endangered.
As I understand it, ordinary breach of contract by a party does not immediately release the counterparty from their obligations unless explicitly provided for in the contract. Unless you want to argue that the breach was repudiatory, the nurses' obligations under the contract were undisturbed.
Bob, the fact that no patients were endangered does not mean that, at the time the nurses' took action, there was no risk of the patients being endangered.
Uhh, ok pal. Did you catch the part where these were imported nurses from the Phillipines that were treated like dirt and compensated accordingly? These weren't heart surgeons. There are plenty of qualified nurses and hospitals in Suffolk County that can and will take care of patients in non-emergency situations. As SPO astutely commented, this wasn't a case where a medical professional ditched their patient in the emergency room. Its a case of people completing their shifts (read, fulfilling their obligations) and moving on.
If medical providers were subject to your strange sense of devotion or else risk fear of criminal prosecution, we wouldn't have any medical providers....that's a great world to live in. I suppose my physician should never retire, after all, he knows more about my medical history than any replacement, thus his retirement would place my "welfare in danger."
Did you catch the part in contract law where breach by a party does not relieve the other parties from their duty to perform except under extraordinary circumstances? Please pick up your favorite book on contract law and search the index for "fundamental breach" or "repudiatory breach".
I don't excuse whatever the management did wrong -- they should be held accountable to their contract as well as all the relevant provisions of US&NY labor law. None of that, however, is relevant to whether the nurses had a duty to fulfill their contractual obligations.
Excellent. I presume the nurses will pay for overtime to hire those nurses, which comes as a direct result of their willful breach of contract.
(1) I stated quite clearly that I agree with the general sentiment that nothing about this case suggests anything remotely criminal. This is a civil matter -- the nurses broke their contract.
(2) Is giving 2-week notice really "strange devotion"? Virtually every employment contract in this country contains a 2-week notice clause, which I think is quite reasonable. Do you really believe that employees with such a term are under no obligation to honor it?
(Aside: If you like, I'll concede me entire line of reasoning that relies on a notion of the nurses professional ethics. The contract issue stands well enough on its own).
I could not care less about contract law since that had nothing to do with my post. My post concerned your strange statement that these nurses engaged in "atrocious" behavior when THEY WERE CLEARED BY THEIR OWN PROFESSIONAL BOARD.
Did you even read the link? I can't imagine a situation where a lawyer is criminally prosecuted for an action if the state bar clears said action.
There may be a story here, but it doesn't involve the nurses' behavior (hint, check my moniker as to who the real bad actor may be). The fact that the DA went after their attorney is pretty clear evidence that something's rotten in Denmark (or Suffolk).
Again, I don't care about the contractual obligation as I haven't read the contract, and unless you have I have no idea why you think your argument stands on its own.
I practiced for years as a private law firm attorney in NYC, and currently review employment contracts with my current company. I've NEVER seen a two week notice clause in an employment contract (if by employment contract we're referring to an executory employment agreement). I've seen many 60-days and 90-days notices (with extremely vague penalty provisions) for, you know, the people the company actually cares about. I HAVE seen employee guides where its recommended and encouraged that employees give two weeks notice in the event they choose to leave, but "at-will" means exactly that, "at-will." I'm not sure how enforceable an employee guide is.
While "virtually every employment contract" may contain a two week notice clause, I'd be willing to wager that virtually every employer is more likely to tend to give two hours notice (if that) when they're the one contemplating breaking the contract.
This is the sort of post that makes me read VC far more than I ever comment here.
On the other hand, this is also obviously the sort of post that actuates my comments, since, in fact, it did.
Long time since I took Contracts, but as I recollect a material breach by one party does release the other party. And from the description, it sure sounds like a material breach to me.
If I wuz the prosecutor, I'd be looking at charges filed the other way. The nurses were lured over here with largely empty promises, induced to sign multi-year contracts with $25,000 liquidated damage clauses, when it's hard to see that as justified save as indentured servitude, etc..
You're confused in three respects.
1. There was no contract requiring 2 weeks notice here; and
2. If there were, then of course the nurses would be responsible for paying damages, and nobody is arguing otherwise; except
3. The employer had already breached its contract with the nurses, so why would the nurses have to pay damages to the employer?
If the contract provides for 2-week notice by the employer, then failure to do so is a breach by the employer. If the contract doesn't say that, what's the problem?
And even your damages analysis is off. The damages (which would, of course, be offset by the damages for the "nasty" breaches by the employer) would be the difference between what they paid for the staffing for that 2 weeks and what they would have paid the nurses.
And even your damages analysis is off. The damages (which would, of course, be offset by the damages for the "nasty" breaches by the employer) would be the difference between what they paid for the staffing for that 2 weeks and what they would have paid the nurses.
And even your damages analysis is off. The damages (which would, of course, be offset by the damages for the "nasty" breaches by the employer) would be the difference between what they paid for the staffing for that 2 weeks and what they would have paid the nurses.
And would you advise your clients to brazenly ignore those terms?
One odd bit from this decision is that it seems that the indictment itself was not dismissed. I am guessing, due to the procedural posture, that these people remain under indictment, but that DA Spota and Justice Doyle cannot proceed to trial. Would it be proper for Vinulan and the others to go back to Supreme Court in Suffolk to ask (another judge) to dismiss the indictment? In such a case, Governor Paterson would have to designate a new prose
I can't believe that any prosecutor even contemplated proceeding criminally for more than about three minutes. Even more problematic is that Justice Doyle did not dismiss the indictment. In the judge's defense, perhaps his default stance is that indictments should be tried; under this thinking, if the jury acquits it is a much greater vindication than dismissal.
(I'm not an attorney, and don't even play one on television, so this is not legal advice.)
In order for a breach of contract to be repudiatory, it must deprive a party the entire benefit of the contract. If the nurses were paid (even if they weren't paid as agreed), the breach is not fundamental and the nurses and are not entitled to suspend performance.
As I said before, please look up "fundamental breach" or "repudiatory breach" in your favorite book on contract law and then try to make your case.
Absolutely. After all the math is done, the management might end up owing the nurses quite a bit of scratch and perhaps even criminally liable for violation of the relevant labor law.
My only point (lost, I'm afraid, in this mess of a discussion) was to express my disapproval of the nurses decision to remedy the managements breach of contract by themselves breaching the contract.
In any case, I hope Supreme Court in Suffolk takes the Appellate Division's opinion to heart; perhaps they could even dismiss the indictment sua sponte.
Illegal immigration is a matter generating a good deal of comment in Suffolk County (e.g., Farmingville, the policies of County Executive Levy). Should these proceedings be considered in this context? Also, before this gets partisan, DA Spota and County Executive Levy are Democrats.
Have you ever had a paying client? Do you understand that real practice (not academia or theory) involves client risk assessment and risk sensitivity? If my client has a 90-day termination clause I wouldn't write a legal opinion stating that he could terminate his employment without recourse, but on the other hand I wouldn't stomp my foot repeatedly shouting "No! No! No! you must fulfill your obligations!"
True story, had a client that was the CEO of an $80M start-up that took about $10M in additional private capital. Needless to say the investor insisted on an employment agreement (90 days termination), a non-compete and key man insurance.
A year later my guy developed some health issues, perhaps not to the point that it qualified as a "Disability" per his employment agreement but enough (in his eyes at least) and he wanted out, and he believed 90 more days at work would affect his health more. I gave him my counsel, in the form of a memorandum, that stated what his obligations were under the original deal documents were and what potential recourse the investor may have in his breach.
Solution: we worked it out. It was a negotiation, just like our original deal was negotiated. Litigation is expensive. Just because a party has a right under a contract doesn't mean its in their best interests to enforce it to the last letter.
"My only point (lost, I'm afraid, in this mess of a discussion) was to express my disapproval of the nurses decision to remedy the managements breach of contract by themselves breaching the contract."
Well the mess is you've ASSUMED the terms of the contract without having read it and ASSUMED a breach, called their actions "atrocious" (which is why I first responded) and for some reason assume that their employment contract, as you state virtually all employment contracts, have a 2-week notice period (which is not the case, customary business courtesy does not equal a contractual obligation).
"The nurses won the breach of contract suit that the employer brought."
I have no knowledge of the civil case at all, and don't know if John is correct.
2. If there were, then of course the nurses would be responsible for paying damages, and nobody is arguing otherwise; except "
Actually I would argue otherwise if the contract stated a party could terminate immediately in the event of a material breach by the other party, which is very customary in employment contracts. But I'm not going to make any assumptions.
My complaint is you say "if you want to offer a particular service". The ER physicians didn't want to offer those services to people who wouldn't/couldn't pay, they were mandated by law to offer those services. Other than not practicing medicine what were their choices?
They were told by law you must work and you may or may not be paid. If you are not paid, tough luck. That is why before I give a collagen injection I get paid in advance. If they asked for proof of insurance in advance and the coverage did not cover out of service network, what exactly are the choices for the physician worker?
(1)The NLRB requirement of 10 day notice applies only to unionized health care workers. These were non-unionized health care workers so the year at will employees.
(2)There was no contract between the home and the nurses. In fact, one of the frauds in recruiting them was that they signed a contact with a nursing home and then were made to work for an employment agency.
(3) They were made agency nurses and some were made "supervisors" even though they were only in the country for two months to avoid them unionizing.
(4) No nurse resigned during a shift. Some gave as much as four days notice and all shifts were always covered. Thats why their actions were cleared by two state agencies (education and Health)NO PATIENTS WERE EVER ENDANGERED. In fact, the court here specifically found that the only thing endangered was the home's finances.
(5) They complained in writing several times to nursing supervisors, held group meetings with the head of the home made lists of grievances, etc for months before taking this action. They even told the supervisor in writing that if their most important grievances were not addressed they would resign en masse two weeks before they did.
(6)Here's some of their main grievances. They were promised housing as a condition of their coming to America and were upset that it consisted of one small three bedroom house for 14 adults with only one bathroom even though men and women shared the house. Several of the men slept on the floor. The house had no phone and no internet access so they were cut off from home and had to walk 3 miles to the library to get internet and a phone. They were supposed to be "direct hires" of a particular nursing home but instead were made agency nurses paid at a much lower rate than promised and with none of the promised benefits.
Even though they were new to the country and new to nursing they were put in charge of 30-40 patients. When they worked at night, they were given no aides, so in addition to their duties they had to change bed sheets, empty garbage pails ,etc. (Remember they were RNs).I could go on but those were the big ones
(7) My client, their lawyer, was asked by the Philippine Consulate to get involved on a pro bono basis.He never told them to quit he just advised them of their rights under the law as I stated above and filed a discrimination claim. This prosecution forced him to shut down his practice, he had quadruple bypass and he was under surveillance by the nursing home owners.
(8) These nursing home owners are extremely politically connected.The investigation into their recruitment practices ended when they got US Sen Chuck Schumer to send four letters to the Philippines on their behalf including the last one to the President of the country. After the case was dropped Schumer received $75,000 from them in contributions. They got this indictment one year after the nurses resigned by arranging a private meeting with DA Tom Spota. While our request for a special prosecutor was sitting on Gov Spitzer's desk for four months (joined by dozens of letters from unions, immigration advocacy groups, law professors, etc) they through a fundraiser for Spitzer where he received $40,000 in contributions. Spitzer's office claimed they did not know of the connection but never returned the money once Newsday told them the connection.
ALL OF THE ABOVE WAS DOCUMENTED IN OUR MOTION NONE OF THESE FACTS WERE REFUTED BY THE OTHER SIDE.
This was a miscarriage of justice and a usurpation of our system by politically connected nursing home owners who were upset that a lawyer got these quiet, dignified people to act. I for one won't rest until we get to the bottom of all of this.
There are some interesting cases on what happens when an employee signs a contract to, say, work for a year, and then quits for reasons unrelated to the employer's conduct, well short of the year. Some courts have awarded money damages to the employer (e.g., costs of finding a replacement, excess wages if any). Of course the facts don't support that here.
And good lord, a criminal prosecution? I wonder if Oscar M. could share with us what he thinks was really going on here.
Nifonged:I've never understood commenters who cut a sentence in half and then argue with the first part, even though the second part addresses their claim. Please re-read my post. The whole thing. Don't stop where you cut it off.
All the court case was about was whether the patient was a party to billing disputes between the provider and the HMO. The law requires to provider to charge reasonable rates and requires the HMO to pay reasonable rates.
Parts of what the law does are pretty much required. You can't have a person brought by ambulance to a hospital with a gunshot wound and the ER doc saying, "this hospital is low on cash, sign over your million dollar house if you want us to even look at you" while you're bleeding to death.
As the Robertson Court noted:
Strikingly similar to the case of sailors (and lawyers), the common law has long regarded the medical professions as having an exceptional character and doctors as having a special duty to their patients, a duty which cannot simply be abandoned at will without any attention to ensuring the safety of patients is maintained. That ancient duty, like the ancient duties of sailors, both preceded and survived the 13th Amendment's enactment.
The 13th Amendment simply was not intended to abolish the concept of professional duty and professional responsibility.
On another note, does anyone know why this was an Article 78 proceeding rather than the Defendants take an interlocutory appeal of the denial of the motion to dismiss?
All these academic discussions about who can sue whom for breach of contract after the fact don't really matter to people with obviously little money who have to get a lawyer to take on their case pro bono from the Consulate. This whole case stinks to high heaven and I'm glad it's starting to get attention.
The depressing aspect of this is that Filipinos take it for granted that many of their countrymen will be exploited and mistreated when they sign with shady employment agencies to go to places like Dubai or Riyadh for work. They assume that they have some rights when they go to the U.S. though.
Completely different circumstances. How difficult do you think it was to get replacement sailors for a ship at sea in the 1800s? How difficult is it to find replacement nurses in New York in 2008?
I read your post just fine. Where in your post did you say anything about an acceleration provision in the event of a MATERIAL breach? Here's what you wrote:
"The employer had already breached its contract with the nurses, so why would the nurses have to pay damages to the employer?"
Nothing about acceleration of termination rights on a material breach. Nada. Zilch. Just because there's a breach of contract doesn't mean there's an acceleration provision. Employment contracts are immaterially breached often, but such breach doesn't necessarily give rise to an acceleration of a termination right. How in the heck did the "second part" of your post address my point? Jeez, I'm generally agreeing with you (my post was a clarification of your point) and I get lip? Note also that I use the term "if" and that I shouldn't make "assumptions" (i.e. I'M NOT ARGUING WITH YOU)? Why do so many commenters think they know the exact terms of the contract in question? Any comment should be qualified that none us have read the darned thing.
BTW thanks to Oscar for his insightful post, apparently a lot of commenters' extincts about the nature of this unjust prosecution are validated.
There's little question about it. Generally, if they are "at-will" employees they are at-will to leave provided they aren't subject to an employment agreement that states otherwise. Most exceptions to the "at-will" doctrine favor the employee (example: discrimination, retaliation) rather than the employer.
From the NY DOL website:
Q: Can an employee be fired without due cause?
A: Yes. New York State is an "employment-at-will," state. Without a contract restricting termination (such as a collective bargaining agreement) an employer has the right to discharge an employee at any time for any reason. This also protects the employee's right to resign. An employer may fire an employee for "no reason" - or even for a reason that might seem arbitrary and unfair -- and the employee is equally free to quit at any time without being required to explain or defend that decision.
There are a few exceptions to "employment-at-will." The most significant of these are laws, enforced by the New York State Division of Human Rights, which prohibit discrimination based upon race, creed, national origin, age, handicap, gender, sexual orientation or marital status.
Stated that way, the answer is pretty obvious.
The Court said (page 2 of the pdf linked at the bottom):
Moreover, if such a clause exists, the remedy for violation wouldn't be forcing the employee to work against her will but, as usual, damages for the costs incurred.
I don't know about you guys, but at every decent job I've had, I accumulated critical knowledge that had to be disseminated to other employees before I left. The final 2 weeks consisted of documenting that knowledge and training the people that would do my job. I consider the obligation not to **** up your employers business on the way out to be part and parcel of being a professional.
In any event, Oren has gone from a legal obligation on the part of the employees to "Gee this is what I do, so they should have done it too".
Game. Set. Match.
But if nurses can constitutionally be compelled to complete their shift -- that is, compelled to work a few more hours - why can't they be compelled to work a few more days? Why does the difference between a couple of hours and a couple of days make a constitutional difference?
It may be that in this particular case, replacements could be found in hours so days weren't needed, and hence "reasonable" notice could be defined as hours. Indeed, the State's administrative law process seems to have determined that that was the case. It may be reasonable to require the criminal law, for which standards of proof and the presumption of proper conduct should presumably be higher, to defer to that determination and its findings when they found that the nurses had not violated nursing standards.
But this would seem to leave intact the basic argument that the state can compel "reasonable" notice and compel working during the "reasonable" notice period. It's just a debate about how long "reasonable" is. Presumably there would be other circumstances, perhaps more isolated locations or harder-to-find special skills, when hours could be demonstrated not to be enough, and days would be reasonable.
Can nurses leave in the middle of their shift? Is the law requiring them to complete their shift unconstitutional under the 13th Amendment? That would seem to be the real debate. Otherwise we're simply disagreeing on details, not the basic point.
No, I quoted a direct line from the opinion of the court that stated they had an employment contract, contrary to Oscar's explicit statement that no such contract exists. I'm eagerly awaiting his explanation of this discrepancy.
Moreover, the dispute was never that they didn't get paid, but that they didn't get paid properly for overtime/etc... That would make for a regular, not repudiatory, breach of contract (at least in my understanding of contract law -- I invite those much more experienced than I to correct me if I'm wrong about what constitutes repudiatory breach in an employment contract).
If the contract had such a provision (and no one has shown me the contents of the contract so I don't know), the nurses would be legally obligated to fulfill it.
"I don't know about you guys, but at every decent job I've had, I accumulated critical knowledge that had to be disseminated to other employees before I left. The final 2 weeks consisted of documenting that knowledge and training the people that would do my job. I consider the obligation not to **** up your employers business on the way out to be part and parcel of being a professional."
as going from legal obligation to they're just not good like me is pretty accurate.
In any event, when you don't pay your employees properly, they get to walk. That's a fact of life here in America--which is why, as I said earlier, banks almost always fund payroll of defaulting borrowers. And as I indicated earlier, Oren, perhaps you ought to think about the doctrine of implied conditions. It's an implied condition of me having to work for you that you pay me what you should.
Of course, a trivial error in pay may not justify walking off job if there is an otherwise enforceable 2 week notice provision in the contract, but I don't think anyone is arguing that is the case. Your "work now, sue for damages later" vision of contract law certainly does not comport with reality in the workaday world, and it runs afoul of the doctrine of implied conditions, which is certainly applicable here.
This is tiresome. Oren, I can explain it to you; I cannot understand it for you.
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, which allegedly is a lower paid and less stable form of employment.
OK, so there was no discrepancy, just some sentences taken out of context.
As to the issue of quitting mid-shift, of course there is a tremendous difference. First of all the regulations of the education department specifically say that quitting in mid-shift is patient abandonment. (Common sense says that too - can a train conductor jump off a train while it is en route and say "I quit." Of course not) Secondly the same regulations say that a nurses obligation to its patient ends when her shift ends and that is the obligation of the facility to make sure there is sufficient coverage. The NY state legislature just undid mandatory overtime (for unionized nurses remember the Sentosa nurses were not unionized)for this reason. Sorry for the long explanation but I felt it was necessary to make clear I did not misquote or misinterpret anything. I would be glad to address any other questions or issues folks on this forum may have.
Oscar Michelen
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.