Alliance Statement on Sentosa Decision

The Alliance for Ethical International Recruitment Practices (Alliance), as a multi-stakeholder organization, recognizes that contracts between foreign-educated health professionals and their recruiters and employers are acceptable given the economic and immigration processing realities. To encourage compliance with these contracts, fair breach fees are permissible in limited circumstances, as long as they are not “used for punitive purposes” and “their pursuit is guided by good faith and reasonableness,” as established by the Health Care Code for Ethical International Recruitment and Employment Practices (Alliance Code).

In October 2019, a federal judge held that Sentosa, a recruiter of foreign-educated nurses, violated the Trafficking Victims Protection Act (TVPA); Sentosa has appealed that decision to the U.S. Court of Appeals for the Second Circuit so it is not yet final. The court’s decision was not an indictment of breach fees as an enforcement mechanism for a reasonable contract. Rather, Sentosa’s behavior was extremely problematic and well beyond the realm of general business practices by recruiters and employers of foreign-educated health professionals (FEHP). In this case, the liquidated damages were not a reasonable estimate of damages, as opposed to an (unenforceable) penalty. The liquidated damage contract provision had been already ruled unenforceable, so threatening nurses with them was a form of coercion. Threat of license loss, criminal action, and civil actions for tortious interference of contract all further establish a pattern of coercion that is antithetical to the practices of Certified Ethical Firms that agree to abide by the Alliance Code.

Given the wide variance of business practices in the health professional recruitment sector, the Alliance Board of Governors strongly encourages all stakeholders in the recruitment process to subscribe to key principles of fairness and transparency. Recruiters should become certified by the Alliance, ensuring their business practices are compatible with Alliance guidelines and independent oversight. Moreover, FEHP and their employers and/or hospital partners should seek to use Certified Ethical Firms for recruitment, staffing and placement services.

In January 2020, research conducted by the Alliance and its parent organization, CGFNS International, Inc., was published by the American Journal of Nursing, describing the current state of recruitment of FEHP to the United States. This research showed that FEHP’s experience improved over the past decade since the research that led to the inception of the Alliance; nevertheless, issues of fairness and transparency faced by many FEHP, and the extreme issues evoked by the Sentosa decision, highlight the continued need for all stakeholders to support fair recruitment principles.

Statement approved by the Alliance Board of Governors.

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