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Friday, March 05, 2010

Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her position

Except under "exceptional circumstances," an employer cannot refuse to permit an individual to resign from his or her position
Matter of Vinluan v Doyle, 60 AD3d 237

Felix Vinluan, an attorney, represented a number of nurses at a Long Island nursing home, Avalon Gardens. The nurses had simultaneous resigned from positions at the nursing home.

Subjected to criminal prosecution as a result of their action, the Appellate Division held that "these criminal prosecutions constitute an impermissible infringement upon the constitutional rights of these nurses and their attorney and that "the issuance of a writ of prohibition [an order issued by a higher court commanding a lower court to cease from proceeding in some matter] to halt these prosecutions is the appropriate remedy in this matter."

The nurses, believing that their complaints concerning their working conditions were not being properly addressed by Avalon Gardens, met with Vinluan and told him that they wanted to resign because they could not tolerate the working conditions they were experiencing much longer.

Vinluan, among other things, advised the nurses that they could not resign in the middle of their shift.

On April 7, 2006, the nurses resigned from their employment either at the end of their shift, or in advance of their next shift, using an identical form letter that they had mutually agreed upon.

The amount of notice provided before the next scheduled shift for each nurse ranged from 8 to 72 hours. As a result Avalon Gardens' Director of Nursing sent a complaint to the New York State Education Department charging that the nurses had abandoned their patients by simultaneously resigning without adequate notice. Following an investigation, on September 28, 2006, the Education Department closed the nurses' cases, concluding that they had not committed professional misconduct because none of them had resigned in mid-shift, and no patients were deprived of nursing care since the facility was able to obtain appropriate coverage.

The following March a Suffolk County Grand Jury handed down a 13-count indictment against the nurses including charges of conspiracy in the sixth degree predicated upon their alleged intent to engage in conduct constituting the crimes of endangering the welfare of a child and endangering the welfare of a physically disabled person. Vinluan alone was charged with criminal solicitation in the fifth degree, asserting that he, with the intent that the nurses engage in conduct constituting the crimes of endangering the welfare of a child and endangering the welfare of a physically-disabled person, requested and otherwise attempted to cause the nurses to resign immediately from Avalon Gardens."

Supreme Court denied the motions to dismiss the criminal action, concluding that there was ample evidence before the grand jury to support all of the counts against the nurses and Vinluan. The Appellate Division reversed the lower court's holding.

The nurses contended that prosecuting them was not a proper proceeding because it contravened the Thirteenth Amendment barring involuntary servitude by seeking to impose criminal sanctions upon them for resigning from their respective positions. Vinluan argued that he was being prosecuted for exercising his First Amendment right of free speech in providing the nurses with legal advice.

As to the nurses' involuntary servitude argument, the Appellate Division said that "The Thirteenth Amendment declares that "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States" and that "[b]y forbidding not only slavery but also factual situations that resemble slavery, the Framers expressed a view of personal liberty that extends beyond freedom from legal ownership by another person."

Further, said the Appellate Division, the U.S. Supreme Court makes it clear that absent "exceptional circumstances," the Thirteenth Amendment bars compulsory labor “enforced by the use or threatened use of physical or legal coercion," citing United States v Kozminski 487 US 931 and a number of other cases. Here, said the court, the prosecution of the nurses has the practical effect of exposing the nurses to criminal penalty for exercising their right to leave their employment at will.

In addition, the Appellate Division held that the prosecution of Vinluan impermissibly violated his constitutionally protected rights of expression and association in violation of the First and Fourteenth Amendments as "an attorney has a constitutional right to provide legal advice to his clients within the bounds of the law." Further, said the court, an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, does not lose the protection of the First Amendment if his or her advice is later determined to be incorrect.

The Appellate Division granted the appeal, prohibiting the Suffolk County District Attorney, Thomas J. Spota, from prosecuting the nurses and Vinluan in Supreme Court, Suffolk County.

NYPPL Comments: Although it is sometimes reported that "a resignation has been accepted" by the appointing authority, all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74).]

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