Bulatlat

(An interview with Atty. Felix Vinluan)

In this interview with Atty. Felix Vinluan, one of the counsels of the Sentosa 27++ (he lawyers for the Avalon 10, now among the Sentosa 27++ “fighters”), it is hoped that all grey areas about the Sentosa 27++ case will be clarified and for the whole Filipino nation to see – and to judge – if the Sentosa 27++ case is worth fighting for. The interview was conducted through e-mail last December.

BY NOEL SALES BARCELONA
Contributed to Bulatlat
Vol. VII, No. 48, January 13-19, 2008

The so-called Sentosa 27++ represent the plight of all Filipino workers abroad, especially those who are working in the health sector.

Their case serves as a living testimony of the horrors of commodification of human beings through labor export, racism, and dirty elite politics of the Philippines and of the United States of America.

They have broken the mirror of illusions that the U.S. is a model of real democracy at work; and that the U.S. is truly a government of justice, equality, and brotherhood as it is trying to portray.

In this interview with Atty. Felix Vinluan, one of the counsels of the Sentosa 27++ (he lawyers for the Avalon 10, now among the Sentosa 27++ “fighters”), it is hoped that all grey areas about the Sentosa 27++ case will be clarified and for the whole Filipino nation to see – and to judge – if the Sentosa 27++ case is worth fighting for. The interview was conducted through e-mail last December.

Noel Sales Barcelona (NSB):  Who are the Sentosa 27++? We have read and/or heard much news about them but they remain "faceless"?

Atty. Felix Vinluan (AFV): I beg to disagree that the Sentosa 27++ have remained "faceless".  That may have been true during the first few months of their legal battles, but they have since come out into the open, having realized that their legal battles are not just about their cause, but the cause of all Filipino migrant workers, as well as the cause of every worker in America, about every patient in America, and about every litigant and lawyer in America.
 
Why Sentosa 27++?  There were initially 26 nurses and 1 physical therapist who filed discrimination charges against their respective petitioning/contracting employers.  Over time, other nurses followed suit.  Thus, the ++.
 
Their names are the following: Juliet Anilao, Harriet Avila, Mark Dela Cruz, Claudine Gamiao, Elmer Jacinto, Jennifer Lampa, Rizza Maulion, James Millena, Tess Ramos, Ranier Sichon, Dondon Parungao, Dulce Bayot, Archiel Buagas, Anna Capulong, Maricelle Dealo, Carlo Garcia, Eduardo Ilagan, Rhean Montecillo, Mitzi Ong, Louella Paglinawan, Ritchel Salve, Eileen Magnaye, Noralyn Ortega, Maritoni dela Rosa, Cecille Jayo, Alipio Esguerra, Jr., Dinah Caluya, Erlinda Castro, Marites Chan, Fe Cinco, Maria Gonzales, Rosina Medel, Rhodalyn San Jose, Rachelle Manugas, Anne Almendrala, and Rowena Lozada.
 
The Sentosa 27++ nurses are one of several individuals/groups being nominated as "Newsmaker of the Year" by Balitang Amerika.

NSB: Why did they go to America? Who helped them go there?

AFV: These nurses/physical therapists went to America to work. Each of them was recruited by the Philippine-based Sentosa Recruitment Agency or SRA to work for a particular nursing home facility in New York. SRA is a single proprietorship owned and managed by Francris Luyun.
 
SRA represented that each of its nurse-recruits would be directly hired or employed by a particular nursing home facility. SRA claimed that it had several nursing home facility- principals in New York.  SRA's brochure and website claimed (still does) that it was a "direct-hire agency", a "direct-hire employer," and that "it guaranteed employment in our own health facilities." Further, SRA had its nurse-recruits individually sign an employment contract with a particular nursing home facility. It was made clear to the nurse-recruits that they would be directly hired by the nursing home facility with which they signed a contract with.  

For example, Elmer Jacinto signed an employment contract with Franklin Center. SRA told Mr. Jacinto that he would be hired directly by Franklin Center upon his arrival in the United States. In fact, Franklin Center was Mr. Jacinto's immigration sponsor.

Furthermore, before his consular interview, SRA provided Mr. Jacinto a letter on Franklin Center's letterhead confirming Franklin Center's offer of employment to Mr. Jacinto. Thus, the U.S. Embassy approved Mr. Jacinto's immigrant visa application.

Mr. Jacinto eventually left for the United States, expecting to work for Franklin Center. To Mr. Jacinto's dismay, Franklin Center would not, could not, and did not provide him employment. Mr. Jacinto also found out that Mr. Luyun, SRA's owner and proprietor, was also working in New York. In fact, Mr. Luyun met his nurse-recruits at JFK International Airport upon their arrival in New York. Mr. Luyun brought his nurse-recruits to staffing houses.  

A few days after the nurses' arrival, he told them that there was no employment with the nursing home facilities the nurses had signed a contract with. However, he did mention that he could provide them work through Sentosa Services. It turned out that Mr. Luyun was working as a recruitment contractor for a nursing employment agency called Prompt Nursing Employment Agency or Sentosa Services. Mr. Luyun had his nurse-recruits fill out employment application forms with Sentosa Services (or Prompt).  And in his capacity as Prompt/Sentosa Services' recruitment contractor, he gave the nurses employment at various nursing home facilities. Again taking Mr. Jacinto as an example, he was given work by Prompt (through Luyun) at a nursing home facility called Avalon Gardens.  Mr. Luyun also gave work to the other nurses at other nursing home facilities, which nursing home facilities are all managed by a healthcare management company called Sentosa Care, LLC.  Sentosa Care, LLC is owned and managed by a certain Bent Philipson.  Philipson was the common Chief Operating Officer of all the nursing home facilities that sponsored all the nurses.  He signed the employment contracts as representative of each of the nursing home facilities that had contracts with the nurses.
 
If you check POEA's (Philippine Overseas Employment Agency) records, more particularly its OFW Info Sheets, you will confirm that Mr. Jacinto's employer was supposed to be Franklin Center. The OFW Info sheets match the names of employers that sponsored each nurse, and with which the nurses signed their respective employment contracts.  However, no one among the nurses was ever employed by their supposed employers. The nurses were all employed by Prompt Nursing Employment Agency, which is doing business as Sentosa Services. If you check POEA's records, you will not find any document that would show Sentosa Care, LLC as one of SRA's accredited principals. You will not also find any document that will evidence any Recruitment Agreement between SRA and Sentosa Care, LLC. What you will find will be the list of nursing home facilities that are the accredited principals of SRA, and which nursing home facilities were sponsored and had contracts with the nurses.  And most importantly, you will not find any document at POEA that will evidence Prompt or Sentosa Services as SRA's accredited principal.
 
If only to make you understand more clearly the arguments of the nurses, please allow me to enumerate some facts:

1. The nurses were given work or employment by Sentosa Services/Prompt through Mr. Luyun and/or Mr. Barry Rubinstein (Prompt/Sentosa Services' HR Director).  The nurses were made to sign employment application forms with Sentosa Services;

2. Sentosa Services/Prompt paid the salaries of the nurses;

3. The nurses received health insurance coverage from Prompt/Sentosa Services;

4. Records show that the nurses received workmen's compensation insurance coverage from Prompt/Sentosa Services;

5. Prompt/Sentosa Services issued work instructions/memoranda to the nurses;

6. Prompt/Sentosa Services issued the nurses their Form W-2 (annual earning statements for tax purposes)

7. Whenever the nurses had complaints or issues at the nursing home facilities they were working at, the nursing administration always told them to refer their concerns/complaints/issues to their "agency" as they were "agency nurses";

8. In one particular nursing home facility (Avalon Gardens), the nurses were issued identification cards identifying them as "Agency Nurses".
 
In addition to their complaint that the nursing home facilities that sponsored them or had contracts with them did not actually hire them, the nurses had other complaints, which included the following:

1. While the nurses eventually found work or employment through Prompt or Sentosa Services, all of them experienced being unemployed for some time upon their arrival in the United States. Most had no work for at least three weeks, such that whatever pocket money they brought with them had been used up. Thus, when Prompt/Sentosa Services offered them employment, they took it because they had to feed themselves, as well as to send money to their families in the Philippines;

2. Contrary to what SRA's staff told them in the Philippines that their nursing licenses or permits were ready by the time the nurses arrived in New York, the nurses found out that their nursing licenses or permits were not ready yet. In fact, some of them had to send the application forms themselves after their arrival, as the applications had not yet been filed. This, of course, delayed the start of their being able to work as nurses;

3. Lack of proper orientation or training. Filipino nurses have no experience working in nursing home facilities as there are no nursing home facilities in the Philippines. Most of the nurses were given one-day or two-day orientation. They were immediately sent to work at the floor. This, of course, is a patient safety issue;

4. Disproportionate nurse-patient ratio. The sponsored nurses were made to take care of 40 to 60 patients, doing all the nursing duties, from wound care, to giving medicines, to personal care, and even going with the patients for doctors' visits. Of course, they were also expected to do their paper work. Sometimes, the nurses were also made to take care of patients in two different wings at the same time. In one facility, the nurses were even made to throw the garbage. The nurses complained that with the number of patients assigned to each one of them, they could not give quality patient care;

5. The nurses were given work responsibilities as nurse managers when they were not even fully licensed or registered nurses yet. Most of the sponsored nurses started working as nurses with limited permits, meaning, they had to work under the supervision of registered nurses. However, the nursing home facilities gave them work responsibilities as charge nurses or nurse managers, without the supervision of any registered nurse. This situation did not just endanger the lives of their patients, but it likewise put the nurses at risk of being sanctioned by the State Board of Nursing;

6. Most of the nurses started working as medical clerks, earning $10 to $14 an hour. This was of course a violation of their employment contracts and federal labor and immigration rules, which guaranteed them salary rates equal to or greater than the prevailing wage rates or the normal rates being received by US workers in the facilities they were working at;

7. The number of paid working hours was unilaterally reduced by Prompt/Sentosa Services from 37.5 hours to 35 hours. Although the nurses were working at least 40 hours a week, as in fact, some were working more than 40 hours a week just to be able to finish their paperwork, they were only paid 35 hours a week;

8. Most of the nurses were not paid night shift differentials and holiday pay;

9. Some of the nurses complained that their and their family members' green cards were unreasonably withheld by Mr. Luyun. The nurses had to follow up with the Immigration Service for their actual green cards. Having been informed by the Immigration Service that their green cards were already sent to their sponsors, they told Mr. Luyun about this, and it was only at then that their green cards were issued to them;

10. Some of the nurses complained that they were not provided with decent living accommodations upon their arrival. Some had to sleep on the cold floor; some had to alternate in using the beds; and most of them complained that their staff house was not properly heated. In fact, two of them who had to sleep on makeshift beds in the garage, because there was no more space for them inside the house;

11. Salaries were often paid late. In fact, the nurses' salaries were almost always not correct in terms of number of hours paid. The nurses had to complain several times before their salaries were paid correctly.

12. Contrary to SRA's promises made in the Philippines, there were some nurses who were not reimbursed their licensure and certification expenses, as well as their fare from the Philippines to New York.

NSB: When did the case start? When did the legal battle start?

AFV: Let it be put on record that the nurses tried to discuss their concerns and issues with Mr. Luyun and Mr. Philipson, but their concerns were never addressed to their satisfaction. Thus, two nurses went to my law office for legal consultation as to their rights as immigrant workers and as parties to an employment contract. Two days later, I got a phone call from the Philippine Consulate, asking me to help two other nurses. These two groups of nurses did not know each other, but they had a common recruiter and common problems regarding their employment arrangements. The four nurses became 27 (the original 27, from whence came the 27 in Sentosa 27++) in one week's time. I was informed that there were more Filipino nurses who would join them, as there were allegedly hundred Filipino nurses working at the various facilities managed by Sentosa Care LLC. In consultation with the Philippine Consulate, I advised the nurses to file discrimination charges against their respective sponsoring or contracting employers with the U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices. I also advised them about their rights as immigrant workers and as aggrieved parties to breached employment contracts. I advised them that considering the totality of the circumstances surrounding their employment, they were actually employed by Prompt Nursing Employment Agency, doing business as Sentosa Services. And there being no employment contracts between them and Prompt/Sentosa Services, their employment relationship was at-will, meaning, they could resign anytime, in the same way that their employer could terminate their employment anytime.

On the night after I filed the discrimination charges on April 6, 2006, Filipino nurses working at one facility resigned. The following day, nurses working at four other facilities resigned. A few days later, Mr. Philipson and his Sentosa Care LLC and the nursing home facilities began their retaliatory actions against the nurses and against me. They got the nerve to file a civil case against the nurses for alleged breach of contract, and as against me for alleged interference of contracts. The nurses counterclaimed for breach of contracts. A few weeks later, and again in consultation with the Philippine Consulate, I filed the POEA complaints against SRA for violation of recruitment rules and regulations, specifically on misrepresentation in the recruitment process (promise of direct-hire by contracting nursing home facility as compared to what actually happened, i.e., agency hire by Prompt/Sentosa Services). The week after I filed the POEA complaints, Mr. Luyun and Mr. Philipson also filed complaints against the nurses before the POEA, for alleged non-compliance to the contracts and for alleged patient abandonment. We also found out that the nursing home facilities filed administrative complaints against the nurses before the New York State Education Department's Office of Professional Discipline. These administrative complaints caused the nurses not to be able to work as their licenses or permits were put on hold.
 
On May 24, 2006, the POEA issued a preventive suspension order against SRA. However, Sentosa's political patron, Senator Chuck Schumer of New York, on June 2, 2006, wrote then Labor Secretary Pat Sto. Tomas and POEA Administrator Rosalinda Dimapilis-Baldoz. Not long after those letters were sent, then Presidential Chief of Staff Mike Defensor called up NY Consul General Cecilia Rebong and POEA Administrator Baldoz. A day after Defensor called up Baldoz, or on June 8, 2006, Baldoz lifted the preventive suspension order – just a couple of weeks after she issued the same. The nurses' Philippine-based lawyer filed a motion to reissue the preventive suspension order, but the POEA denied the motion on September 11, 2006, because there were allegedly no other complaints of similar nature filed against respondent agency. So, in November 2006, a second batch of complaints was filed against SRA before the POEA. A preventive suspension order was requested. This request has not been acted upon. Recently on September 4, 2007, POEA Administrator Baldoz dismissed the first batch of complaints, stating that there was no violation of POEA recruitment rules and regulations by SRA, as it made a factual finding that there was allegedly a Recruitment Agreement between SRA and Sentosa Care LLC. And because of this alleged Recruitment Agreement, Sentosa Care LLC could assign the recruited nurses to any of its healthcare facilities. It also found that Prompt or Sentosa Services was but a payroll company for Sentosa Care. This September 4, 2007 Order was appealed on time before the Secretary of Labor. It is still pending resolution. And most recently, a third batch of complaints was filed before the POEA against SRA. A similar request to issue a preventive suspension order was made. We hope the POEA gives meaning to its mandate to protect the rights of Filipino migrant workers by suspending SRA, if not actually revoking its recruitment license.
 
As to the discrimination charges we filed before the Office of Special Counsel (OSC), Philipson and Sentosa Care somehow managed to convince the OSC to delay its investigation.  More than a year after we filed the charges, the OSC had not made any decision yet. Thus, on May 14 and May 15, 2007, the nurses filed the discrimination complaints before the OCAHO Judge, without waiting for the OSC to file the complaints. This was allowed by federal regulations – that if the OSC does not file any complaints to the OCAHO Judge within 120 days upon its receipt of the discrimination charges, the injured parties could file directly with the OCAHO Judge. After the Judge had taken jurisdiction over the discrimination complaints, OSC issued its August 31, 2007 Order finding that there was insufficient evidence to file discrimination charges against the Sentosa facilities. Well, the OSC Order is moot and academic anyway. It is our belief that the OSC may have been influenced by Sentosa's political patrons, thus the delay in its investigations and its August 31, 2007 Order. This OSC Order notwithstanding, the OCAHO Judge issued an Order of Inquiry requiring OSC to explain why it took it so long to finish its investigation, and to explain at whose initiative the Tolling Agreements were entered into.
 
As to the civil cases, the Supreme Court Justice denied Sentosa's application for preliminary injunction on July 5, 2006, finding that Sentosa Care and the other nursing home facilities were not likely going to win the case on the merits.  On reargument, the Supreme Court Justice again denied Sentosa's application for preliminary injunction in a January 7, 2007 Order stating that Sentosa was not likely going to win the case on the merits.
 
As to the administrative cases filed against the nurses, the Office of Professional Discipline communicated to me on September 13, 2006 that the administrative cases had been closed, finding that the nurses did not do anything improper, and that there was no basis for the complaint that the nurses had abandoned their patients.

Using again its political connections in Suffolk County where ten of the Sentosa 27++ nurses used to work (at the Avalon Gardens nursing home facility), Philipson and Sentosa's influential lawyers (Howard Fensterman) were able to convince the District Attorney's Office to investigate the ten nurses for having allegedly conspired to endanger the lives of children and disabled patients when they resigned together on April 7, 2006.  I was also included as part of the alleged conspiracy.  Last March 22, 2006, the ten nurses and I (Avalon 11) were indicted before a criminal court judge in Suffolk County.

NSB: What are the new developments in the case? Are there any new evidences that will support the case against the culprits?

AFV: The Federal discrimination cases – discovery proceedings are going on.

Civil cases – examination before trial (EBT) stage.  Parties are being deposed.  We had just deposed Luyun who admitted that Prompt/Sentosa Services is not one of SRA's accredited principals; that Sentosa Care, LLC is not one of SRA's accredited principals, and; that there was NO recruitment agreement between SRA and Sentosa Care, LLC (which admission should debunk POEA's factual finding that there was one)

Criminal cases – Gomberg motion on Dec. 17.  

The Judge would ask the nurses if they understood they had the right to secure their respective defense counsel.

NSB: What support did your clients and yourself get, from the Filipino communities in the States and in the Philippines, perhaps?

Justice for Sentosa 27+ Campaign was established and is being spearheaded by the National Alliance for Filipino Concerns (NAFCON) and its member-organizations. The New York State Nurses Association (NYSNA), the Philippine Nurses Association of America (PNAA), the Philippine Nurses Association - New York (PNA-NY), the California Nurses Association (CNA), the Migrant Heritage Commission, and Region I of the National Federation of Filipino American Associations (NaFFAA Region I) are some of the organizations supporting us.  Presently, there is a campaign to urge New York Governor Eliot Spitzer to appoint a Special Prosecutor for the criminal cases, as we believe that political campaign contributions and political influence may have played a role in the actuations of the Suffolk County District Attorney in investigating and indicting the Avalon 10. Please refer to Newsday's articles about this issue. The latest civil rights organization supporting the call for the Governor to appoint a Special Prosecutor is the Asian-American Legal Defense and Education Fund (AALDEF).
 
In addition to the campaign for the appointment of a special prosecutor, the nurses and I have reached out to the Filipino-American community to help us in our legal defense.  We have set up a legal defense fund called the "Sentosa 27 Legal Defense Fund."
 
In the Philippines, we have a similar J4S27+ Campaign being spearheaded by Migrante International, and is being supported by Alliance of Health Workers, HEAD (Health Alliance for Democracy), Philippine Nurses Association in the Philippines, and also by the Center for Migrant Advocacy.  Both houses of Congress had recently initiated investigations in aid of legislation into the recruitment activities of SRA. We hope that Migrante would be able to make a headway into having the POEA issue another preventive suspension order against SRA, considering that there are still two sets of complaints still pending before POEA's hearing officers. Contributed to Bulatlat