US case vs recruitment agency not yet over--Filipino lawyer
By Veronica Uy
INQUIRER.net
First Posted 10:58am (Mla time) 09/10/2007
MANILA, Philippines -- The employment discrimination cases that have been filed against a New York-based recruitment agency by 26 Filipino health professionals are not yet over, their lawyer told INQUIRER.net Monday.
In an exchange of e-mail and text messages, Felix Vinluan said the Aug. 31, 2007 decision by the Office of the Special Counsel (OSC) of the United States’ Department of Justice has been rendered “moot and academic” since the US DoJ’s Office of the Chief Administrative Hearing Officer (Ocaho) has taken jurisdiction over the complaints against Sentosa.
“The Ocaho, under Administrative Law Judge Ellen K. Thomas, has taken jurisdiction over the discrimination complaints. The discrimination cases are no longer with the OSC,” Vinluan said in an e-mail.
“In fact, Judge Thomas recently consolidated the 26 cases into two main case titles. The nurses’ counsel, Attorney Salvador Tuy of Prado & Tuy, LLP, recently filed his discovery requests, giving the respondents until September 25 to produce documents, make written admissions, and reply to written interrogatories,” he said.
Lawyer Ibaro Relamida, the Philippine-based counsel of Sentosa, gave INQUIRER.net a copy of the OSC decision, which he said closed the case and proved that his “client was not engaged in any illegal practices.”
But Vinluan said that since the cases were now before Judge Thomas, this would belie Relamida’s statement.
Vinluan said he and his clients elevated the case to the Ocaho after the OSC failed to render a decision 120 days after the filing of the case, in violation of its rules. He said the OSC also postponed the decision three times, raising his and his clients’ suspicions that the OSC was sitting on their case.
“It had become very clear to the nurses that the OSC had been giving the respondents so much time to provide discovery, further delaying the institution of the discrimination complaints before the Ocaho. Thus, on May 14, 2007, the 26 nurses, without waiting for the OSC, directly filed the discrimination charges before the Ocaho,” Vinluan said.
Aside from the discrimination complaints, Vinluan said his clients have also filed a counterclaim for breach of contract in the civil cases pending before the Supreme Court in Nassau County against their respective petitioning employers, which are Sentosa-affiliated health-care facilities.
“They are asking for rescission of their contracts and an unspecified amount of damages equivalent to what they would have received as salaries and benefits had they been directly hired by their respective petitioning employers, plus moral and exemplary damages of course,” Vinluan said.
The case started April 6, 2006 when the nurses filed discrimination charges against the Sentosa-affiliated healthcare facilities that individually sponsored them, and with which the nurses signed employment contracts, as well as against Bent Philipson and Francis Luyun.
Vinluan identified Philipson as the common chief operating officer and managing partner of the Sentosa-affiliated facilities and Luyun as the proprietor of the Philippine-based Sentosa Recruitment Agency.
Vinluan said Luyun also worked as international recruiter of the New York-based Prompt Nursing Employment Agency, doing business as Sentosa Services.
The lawyer explained that the discrimination charges were filed before the US DoJs OSC “because the nurses were not directly hired by their respective petitioning employers on account of their immigrant or citizenship status. Instead, they claim they were made agency nurses of Prompt Nursing Employment Agency.”
The 26 health professionals, many of who are in the US, also filed an anti-recruitment case against Sentosa here in the Philippines. They charge that Sentosa allegedly violated regulations that prohibited misrepresentation and contract substitution.
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