The COVID-19 pandemic has exposed healthcare systems in crisis across numerous countries, including the United States, the United Kingdom, Canada, and France. Hospitals, nursing homes, and other healthcare facilities have been recruiting foreign professionals to address the growing urgency. However, expatriates often encounter vastly different working conditions compared to their local counterparts. What factors should be considered when employment contracts contain restrictive clauses? What do the laws state, and who can be approached when faced with such circumstances?
The emloyment crisis in the United States
In the healthcare industry, nurses are vital, but there is a severe shortage, which is worsening. According to the National Council of State Boards of Nursing, since 2020, 100,000 nurses have left their positions, and over 600,000 are considering doing the same. Excessive pressure and heightened stress are often cited as reasons. Those who remain are nearing retirement age. Certain states are significantly affected, such as New Mexico and California, with the latter projected to face a shortage of 45,000 nurses by 2030, as reported by the National Nurses Union. The shortages are estimated to reach 16,000 in Texas, 11,000 in New Jersey, nearly 11,000 in South Carolina, and 5,400 in Alaska. Consequently, the United States will require 1.2 million nurses by 2030.
To address the situation, hospitals and nursing homes are recruiting foreign professionals, particularly from the Philippines. However, the multi-year employment contracts offered by some recruitment agencies often contain highly restrictive clauses. An NBC News investigation published on June 4th shed light on this issue, revealing that certain agencies demand penalties of up to $100,000 from foreign nurses who resign. Instances of such cases are increasing, with agencies capitalizing on legal gray areas.
Abusive contract clauses
Expatriates claim to be victims of an unequal system. Employers, such as CommuniCare (a corporation with 18,000 foreign employees), WorldWide HealthStaff Solutions, and Overseas Manpower Solutions, allegedly promised them decent jobs with salaries equivalent to those of local employees, in accordance with the law. However, in reality, foreign nurses are often paid less than their American counterparts and face unbearable workloads and working conditions. These circumstances drive foreign workers to resign, and subsequently, agencies demand penalty payments for breach of contract. The agencies provide these employees with EB-3 visas (also known as Green Cards). On paper, these visas do not tie the nurses to their employers, allowing them to switch employers without affecting their immigration status.
In practice, the situation differs considerably. Threats of legal action and intimidation tactics are employed. Some expatriates claim to be "trapped" by their employers and forced to work in appalling conditions. The agencies defend themselves by asserting that foreign workers must simply adhere to the employment contract's clauses and pay penalties if they wish to resign. However, these penalties far exceed the costs incurred by agencies in obtaining the workers' Green Cards. Faced with what they perceive as injustice and mistreatment, foreign professionals have taken their employers to court, achieving success in some instances. Nonetheless, the struggle persists for many others. In 2019, the operator of a New York nursing home was fined $25,000 for violating human trafficking laws. Unfortunately, these practices persist and reportedly worsen as nursing shortages intensify. Nursing and labor advocates believe that the federal government must intervene.
Clauses in employment contracts for foreign workers
What should foreign workers bear in mind if their employment contract includes penalties for resignation? First and foremost, it is crucial to remember that signing the contract immediately is not mandatory. Some employers use leverage to prompt expatriates to sign a contract they have just received. Furthermore, before seeking employment or engaging with a recruitment agency, it is advisable to research the foreign country's laws. What are the visa requirements? Are they employer-dependent or not? Are there any protections for foreign employees? Some visas allow resignation without impacting immigration status (such as the Green Card), while others are more restrictive.
However, even with more restrictive visas, human rights must be upheld. Some contract clauses are abusive, while others are illegal. An abusive clause favors the employer at the employee's expense, and illegal clauses are prohibited by the labor codes of the foreign country, possibly violating international labor laws. Abusive or illegal clauses encompass discriminatory provisions that infringe upon individual freedoms or contravene the labor laws of the host country, including lower-than-legal-minimum wages or salary-related penalties.
Where to seek assistance?
Be cautious if such clauses appear in your contract. Detecting them can be challenging, especially when the contract is in a language other than your native tongue. Even if expats are proficient in their host country's language, understanding the legal jargon can be complex. Some employers exploit the unfamiliarity of foreign workers with the language to include restrictive clauses in contracts while simultaneously conveying a different message regarding the job, salary, and working conditions.
In case of doubt about an employment contract, it is best to have it reviewed by a professional before signing. If the contract has already been signed and a problem arises, aid associations can provide legal and moral support.
Useful links:
France: information and support group for immigrants
European Union: protecting migrant workers from exploitation
