Nurses union to sue hospital
Filipino recruitment program at Albany Med called forced labor
The New York State Nurses Association intends to file a lawsuit Tuesday in federal court that alleges Albany Medical Center Hospital has effectively forced hundreds of Filipino nurses to continue working there under threat of severe harm.
The arrangement, in which nurses who are recruited from the Philippines must pay the hospital up to $20,000 if they leave the job within their first three years of employment, constitutes forced labor and violates federal human trafficking law, the union contends.
Union officials said they first learned of the
requirement several years ago during their organizing drive at the hospital, when nurses were eager to share stories of poor working conditions.
“It just seemed patently objectionable,” said Steven Toff, general counsel at NYSNA. “We thought, this can’t be permissible for them to do this.”
Albany Med, which strenuously disputes the union’s allegations, began recruiting nurses from the Philippines in 2002 and has brought 582 workers through the program in the years since, according to a draft complaint shared with the Times Union on Monday. The final complaint will be filed Tuesday in U.S. District Court.
In order to be considered for the program, Filipino nurses must fill out an application, participate in an interview, and complete a qualifying exam and English proficiency test given by the Commission on Graduates of Foreign Nursing Schools. They also must sign an employment contract.
Central to the lawsuit is a provision in the contract that obliges the nurse to immediately repay Albany Med up to $20,000 in “placement fees” should they resign or be fired within their first 36 months of employment. Placement fees purportedly cover the cost of bringing nurses to the U.S., and include things like employment agency fees, attorney fees, testing applications, transportation, immigration filing fees and more.
The penalty is a full $20,000 should the nurse leave in their first 10 months, $15,000 should they leave in their 11th through 20th month, and $10,000 should they leave in their 21st through 36th month.
NYSNA contends this penalty is disproportionate to the actual costs incurred by Albany Med, as well as to the compensation Filipino nurses receive for their labor, which is as little as $50,000 a year before taxes.
The contract also states that failure to repay those costs may constitute fraud, and that Albany Med may report “failure to make restitution to the Bureau of Citizenship and Immigration Services under applicable immigration fraud statutes.”
NYSNA argues that between the significant financial penalty and threat to immigration status, the nurses reasonably feared serious financial, psychological and reputational harm if they stopped working for Albany Med.
“Not only are they saying they are going to hold them responsible for paying this money, they are saying that act (of leaving the job) in and of itself may jeopardize their immigration status,” Toff said. “That is a completely unnecessary and over-the-top claim to insert into a contract for the sole purpose of intimidating anyone who may try to leave.”
A federal judge this month ruled that a nursing home company with homes in New York City violated federal human trafficking law because of a similar provision in its contracts with Filipino nurses.
U.S. District Judge Nina Gershon concluded that a $25,000 penalty for nurses who stopped working for the company violated the forced labor clause of the Trafficking Victims Protection Act, which lays out penalties for anyone who “knowingly provides or obtains the labor or services of a person by means of serious harm or threats of serious harm,” which can include physical, psychological, financial or reputational harm.
“This provision constitutes a threat of sufficiently serious financial harm to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm,” she wrote.
‘A grotesque perversion’
Albany Med Ceo-designate Dennis Mckenna offered a strong response to the allegations Monday.
“We do not normally comment on pending litigation, but in this case we feel compelled to respond and defend ourselves against NYSNA’S outrageous allegations,” he said. “The lawsuit is a grotesque perversion of the original intent of the statute and a blatant mischaracterization of the program that has benefited 577 nurses and 13 med techs over the past 18 years.”
He criticized the lawsuit as groundless and called it a negotiation-season stunt that comes as the hospital and union work on a first-ever employment agreement for the hospital’s roughly 2,200 nurses.
In the past three months, NYSNA has held two public events to raise awareness over what nurses say are unsafe staffing levels. They say the hospital is unable to fill approximately 200 nursing vacancies because of its unattractive pay and benefits, as well as stressful working conditions.
Mckenna said that the hospital has been negotiating in good faith with the union for more than a year now, but that the union has “never once” raised concerns over the Filipino nurses’ contracts. If NYSNA truly cared about the nurses, he said, it would have made contract proposals regarding their recruitment and employment.
“This is the perfect example of how NYSNA does not represent the best interests of our nurses,” he said. “Rather, it distorts the truth in order to create divisiveness, but this legal overreach will fail to divide our staff.”
The hospital also offered a statement from registered nurse Michelle Tubis-corrales, who said she came to Albany Med voluntarily to seek out better opportunity and “the American dream.” In her 16 years with the hospital, she has worked her way up from f loor nurse to manager.
“I consider myself as a living legend of Albany Med’s dedication to offer personal and professional growth not just throughout the Capital Region, but the country and internationally,” she said. “Albany Med had seen and cultivated the potential in me, investing in my personal growth and giving me this opportunity ... and for that, I will be forever grateful.”
Sticking it out
Other Filipino nurses don’t feel the same way, said Jennifer Bejo, a registered nurse who was recruited from the Philippines more than a dozen years ago.
Bejo said she was raised to believe that education was the way out of a destitute life. She completed a bachelor’s degree in nursing in 1995, and was recruited by Albany Med approximately eight years later. The process was lengthy and involved; she recalls filling out many forms, completing various exams, and traveling more than 200 miles from her town to complete an interview in Manila.
By the time she was presented with the contract, Bejo said, she felt she had to go through with it.
“The idea of being able to leave and earn money was already there within my reach,” she said. “I had already exhausted my time and efforts to travel for processing my papers. I had already spent all that time getting ready for exams. I just had to sign it.”
American hospitals have a long history of recruiting nurses from the Philippines. It dates back to the late 19th century, when the U.S. first colonized the country and began establishing nursing schools.
The Americanized nursing curriculum meant that the U.S. had a sizable pool of nurses to recruit from whenever it experienced shortages, as it did during and after World War II. Today, the Philippines remains a leading exporter of nurses to the U.S.
“A lot of us Filipinos view the nursing profession as the ticket to a better life,” Bejo said. “The salary we can earn here is 15 times bigger than what we would earn in the Philippines. That was the catalyst for my American dream.”
But Bejo became homesick as soon as she stepped foot in the U.S. in February 2006.
“It was a Tuesday afternoon; it was cold, dark, snowing,” she
said. “I had only one luggage with me and a little less than $100 in my pocket. I left my family back home. I have never felt so alone.”
Bejo said she would have left Albany Med before her contract was up in those early years if not for the financial penalty. She had an aunt in Detroit and other extended family in Virginia who urged her to move closer, and she watched as colleagues left for betterpaying jobs in states like California and Texas.
She said it was widely understood among the Filipino nurses that you just had to “stick it out” and get through your three-year contract term.
“There was acceptance that we need to stay — otherwise we’re going to pay,” she said.
One nurse who is unnamed in the draft complaint allegedly wanted to resign and move to Rockland County because she had an aunt who lived there and a friend from church who was earning nearly $7 more an hour as a nurse. With a 4-year-old and a disabled spouse to care for, the higher pay and family help with child care was appealing.
“Not only could she not afford the amount she would immediately need to pay to AMC, but at her orientation in the Philippines she was informed ... that if she broke her contract, she would be deported,” the complaint states.
Another nurse wanted to resign because the hospital refused to assign her to a unit she was specially trained in, despite openings in that unit, according to the complaint.
She was also dismayed to learn an American nurse who had just completed an associate’s degree and was in her first year of nursing was making an hourly rate that was $6.20 higher than hers, even though the Filipino nurse had 12 years of experience and a postgraduate education.
Another nurse who was raising children on her own wanted to resign after the hospital refused to increase her salary. According to the complaint, they incorrectly claimed that her contract prohibited them from giving her a raise.
Though rare, some Filipino nurses have breached the contract and were ordered to pay, the complaint states.
The nurses have no legal grounds on which to fight the penalty, NYSNA argues, because they signed a “confession of judgment” — a type of contract in which the signing party waives their legal rights in the event of a dispute. Such contracts are controversial, and
were effectively outlawed this year in New York’s small-business financing sector.
NYSNA said the allegations of forced labor were brought to the attention of the state Department of Labor, which turned the case over to the state attorney general’s office, which according to the union has an “active investigation” under way.
Neither agency responded to a request for comment Monday, which was a holiday for many state employees.