Important Employment Law Victory
WEDNESDAY, JANUARY 14, 2009

On Tuesday, January 13, the Appellate Division, Second Department issued an important and powerfully written decision in a case in which our Employment Law Project appeared as amicus curiae. Congratulations to Richard Blum and Amy Hong, staff attorneys in the Employment Law Project who did excellent work in preparing the amicus brief and advising and strategizing with the parties and their counsel.

The case, Matter of Vinluan v. Doyle, involved a group of ten nurses who had been recruited from the Philippines to work in the United States by a Philippines-based recruitment agency. While in the Philippines, they signed an employment contract with a nursing home in the United States. The nurses were to receive two months of free housing and medical coverage, training, and assistance in obtaining legal residency and nursing licenses, in exchange for a three-year commitment. When the nurses arrived, they discovered they would be working for an employment agency instead of the nursing home, a lower paid and less stable form of employment. The nursing home had not obtained the required nursing licenses, and the nurses were housed in a single-family staff house with one bathroom, inadequate heat, and no telephone service. They were not paid properly for overtime and night shifts, and they had other grievances about working conditions. The nurses consulted with a lawyer, Vinluan, to inquire whether they could resign because they could not tolerate the working conditions much longer. Vinluan advised they could resign once their shifts had ended. On the following day, the nurses collectively resigned after their shifts ended. The nursing home filed a complaint with the State Education Department charging that the nurses had abandoned their patients. The Department dismissed the complaint after finding none of the nurses had resigned mid-shift and no patients were deprived of appropriate care.

One year later, the Suffolk County District Attorney obtained a 13-count indictment charging Vinluan and the nurses with a conspiracy to endanger the welfare of children in the nursing home. Vinluan was also charged with criminal solicitation, asserting that he encouraged the nurses to engage in conduct constituting the crime of endangering the welfare of children. The trial court denied motions to dismiss the indictment on the grounds that the prosecution violated their Thirteenth Amendment rights. Vinluan and the nurses then moved for a writ of prohibition in the Second Department. Our Employment Law Project (Richard Blum and Amy Hong) submitted an amicus brief on behalf of The Legal Aid Society and the National Employment Lawyers Association/New York, and Levy Ratner submitted an amicus brief on behalf of 1199 SEIU United Healthcare Workers.

In a strongly worded opinion, the Second Department issued a writ of prohibition, finding that subjecting the nurses to criminal sanctions for the act of resigning effectively compels them to remain at their jobs, subjecting them to involuntary servitude in violation of the Thirteenth Amendment. The court emphasized that the aim of the Thirteenth Amendment was not merely to end slavery, "but to maintain a system of completely free and voluntary labor throughout the United States." No state may therefore make the quitting of work any component of a crime.

The decision has especially powerful language about the rights of attorneys to counsel their clients about any action they believe in good faith to be legal. "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 opinion also holds that, by placing an attorney in the position of being required to defend the legal advice he or she has given, the prosecution requires a breach of confidential communications between the attorney and client. "A prosecution which would compel the disclosure of privileged attorney-client confidences . . . is, in our view, more than a First Amendment violation. It is an assault on the adversarial system of justice upon which our society, governed by the rule of law rather than individuals, depends."

Congratulations to Ricky and Amy and all those who worked on this important case.