Toronto Employment Lawyer

Lawyer faces criminal charges after clients act on his advice

New York lawyer Felix Q. Vinluan, has been criminally charged on 13 counts after 10 nurses quit their job, allegedly on his advice.

The charges stem from an April 7, 2006 incident in which 10 clients of Mr. Vinluan mutually resigned from their position with Sentosa Care, a Long Island health care facility they worked for. The district attorney's office said the mass resignation endangered 6 critically ill patients, 5 of which were children -- because the resignations were not provided with advanced notice. 

The workers, who all immigrated to the United States from the Philippines in 2005, held at-will contracts. Vinluan claims, and his client's attest, that he simply advised them that as an at-will employee, their employment could be terminated at anytime by either the employer or employee.

The County D.A.'s office claims that Mr. Vinluan went beyond his normal scope of giving advice and instead, encouraged the workers to submit their resignation. District attorney Lato said in a recent interview "If all Mr. Vinluan did was advise, rather than 'encourage,' he wouldn't have been charged."

Vinluan asserts he is a target stemming from collusion between Sentosa's attorney's and County D.A. Spota after claims of a "secret meeting" between the two have surfaced. He further iterates Sentosa cannot afford to lose out on its pool of immigrant workers and is afraid of other worker's doing the same as his 10 clients.

Canadian employees are not subject to at-will employment and any attempt to insert language into their employment relatinship that provides less generous severance that the minimum employment standards is invalid.

The issue of wrongful resignations is more interesting.  Similar to the employers' obligation to provide advance notice of termination, employees must provide advance notice of their resignations, assuming there is no such contractual term that specifies another amount.  The amount of notice is dependant on how long it would reasonably take the employer to find a suitable replacement.  While wrongful resignation lawsuits in Canada are rare (proving a tangible economic loss is the reason), employees must still be careful.   

Even more interesting is whether or not Mr. Vinluan will be convicted.  The full article, found on Law.com, can be read here.

Daniel A. Lublin is a Canadian employment lawyer practicing exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.   

At-will workers refused the right to sue for fraudulent inducement

Canadian employees are not subject to at-will employment.  But their American counterparts are: Kenneth Smalley and four other plaintiffs were fired when their former employer The Dreyfus Corporation, terminated their employment without cause after the parent company Mellon Financial Corp. merged the taxable fixed income group with another fund group they owned, Standish Ayer & Woods.

The Plaintiffs contend they joined Dreyfus on the advice that the group would not be merged. Their claims of breach of contract and fraudulent inducement fell on deaf judicial ears. Chief Judge Kaye, relying  on the precedent established in Murphy v. American Home Prods. Corp., 58 NY2d 293, 305 (1983), found there was no grounds for the claim.

Relying on the Murphy decision, the Court ruled that, regarding at-will workers, "either the employer or the employee... may terminate the at-will employment for any reason, or for no reason". It further backed the previous decision adding "In the decades since Murphy, we have repeatedly refused to recognize exceptions to, or pathways around, these principles worked at-will or with no formal guarantee of employment".

Under Canadian law, at-will employment contracts are illegal.  At a minimum, employees are entitled to, at least, the amounts set out in the applicable provincial or federal legislation.  Any attempt to contract out of, or provide to the employee less than, the minimum standards would be considered void.   

For more information on employee's need for proper contract review prior to signing, see my previous Metro News article; Contract Terms are Binding.

Daniel A. Lublin is a Toronto employment lawyer practising exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.