The St. Thomas-St. John Chamber of Commerce, the spearhead against the territory’s Wrongful Discharge Act, will decide next week whether it will ask the full 3rd Circuit Court of Appeals to rehear its recent decision upholding the local labor law.
The Wrongful Discharge Act has been criticized by many employers in the territory, as well as the Chamber of Commerce, as being too restrictive when it comes to terminating employees.
An amendment to the law in 1996 called for the private sector to engage in collective bargaining in order to amend contracts between employee and employer whether or not they are members of a union. It is that amendment that violates federal labor policy, according to Charles Engeman, attorney for the Chamber and the St. Thomas-St. John and St. Croix Hotel and Tourism Associations.
Last February, District Court Judge Thomas K. Moore ruled that the WDA is "directly" preempted by the federal National Labor Relations Act "because it requires union involvement before any contractual modification to the WDA's requirements."
In a second and separate analysis, Moore said the WDA "violates national labor policy by interfering with the free play of economic forces in the private labor market which Congress has intentionally left unregulated."
In their appeal, the V.I. government and attorneys for Legal Services of the Virgin Islands, which represents employees in wrongful discharge cases, argued that Moore was wrong in ruling that the WDA was preempted by federal law.
Last week, a three-judge panel in the 3rd Circuit Court of Appeals agreed, overturning Moore’s February injunction against the Labor Department's hearing any more wrongful discharge cases.
The 3rd Circuit decision determined that the "District Court's conclusion that the associations have a likelihood of success on the merits of their claim that the WDA is preempted by the NLRA . . . was based on erroneous legal analysis."
Joe Aubain, executive director of the St. Thomas-St. John Chamber of Commerce, said the organization's leadership will discuss its options next week.
"There will be a decision," Aubain said. "But it won’t be decided until Tuesday at the regularly scheduled meeting."
Engeman, who works for Ogletree Deakins, a national employment labor law firm, said he will recommend to the associations that they petition the entire 14-member 3rd Circuit for a rehearing on the matter.
"It’s a difficult thing to get done, but we believe this is an important issue," Engeman said. "We have to show that the panel’s decision conflicts with decisions of the Supreme Court and the 3rd Circuit Court of Appeals. We believe the panel’s decision does both of those things.
"We think they are wrong."
Legal Service’s Kathleen Navin, who argued against Moore’s decision before the 3rd Circuit panel in Pennsylvania last year, sees things differently. She said there is Supreme Court precedent for the case and the bottom line is that the WDA doesn’t get in the way of an employer firing someone who isn’t doing his or her job.
She said states and the federal government have employee-protection laws similar to those of the Virgin Islands.
The Wrongful Discharge Act "lays out the reasons you can terminate someone. It protects employees against arbitrary discharge," Navin said. "The at-will doctrine has been pretty much abrogated."
The associations represent the interests of more than 800 employers on St. Thomas, St. John and St. Croix. Together, their members employ more than 12,000 people, according to court documents.
There are nine reasons that an employer can justifiably terminate an employee. These include the employee:
– Engaging in conflicting business.
– Engaging in insolent or offensive conduct.
– Using intoxicants or controlled substances that affect the employee's work.
– Disobeying reasonable rules or instructions.
– Being negligent, incompetent, inefficient, dishonest or unable to work with others.
– Regardless of the employee's behavior, economic hardship of the employer.
According to the V.I. Code, any employee discharged for any other reasons is considered to have been wrongfully discharged.