The territory’s leading business group will seek to have the 3rd Circuit Court of Appeals decision upholding the territory’s Wrongful Discharge Act reheard.
John deJongh Jr., president of the St. Thomas-St. John Chamber of Commerce, said that the organization’s executive committee decided Tuesday to ask the full 3rd Circuit reevaluate a decision made by a three-judge panel June 30.
Whether the 3rd Circuit grants the petition from the chamber, the St. Thomas-St. John Hotel Association and the St. Croix Hotel and Tourism Association for a rehearing or not, deJongh said employers will approach local legislators to have the WDA massaged. Under the V.I.’s labor law, there are nine reasons why an employer can justifiably terminate an employee. Those 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 employees discharged for any other reasons are considered to have been wrongfully discharged.
DeJongh said employers don’t have a problem with what is contained in the WDA. Rather, he said, the problem is with "what’s missing and the administrative aspects" of the law.
"The act doesn’t allow for a probation period for employees and it doesn’t allow for downsizing," deJongh said. "That’s why you’ve seen out-sourcing and contracts become more popular" with employers.
A three-judge panel in the 3rd Circuit Court of Appeals overturned V.I. District Court Judge Thomas Moore’s February injunction against the V.I. Labor Department from hearing any more wrongful discharge cases. 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."
Charles Engeman, attorney for the employers, said a decision on the petition for a rehearing could come quickly or not. The petition will be submitted to all 14 of the 3rd Circuit judges on Friday. After review, a majority of the judges must agree to rehear the case or the decision to overturn Moore’s decision will stand.
If the judges decide to rehear the case, they have the choice of using information filed during initial proceedings last year or hearing arguments with or without additional briefs being filed.
"It could be as quickly as a couple of weeks or as long as several months" for the court to decide, Engeman said. "I would assume it would not take that long."
Meanwhile, Ralph Mandrew, president of the V.I. Workers Union, decried employers’ efforts to have the WDA repealed. He called the legislation the "Magna Carta" of employees in the territory. He said that before the act, non-unionized employees had no recourse if they thought they had been unjustly fired from their jobs.
"It freed men and women from the dictates of employers," Mandrew said.
But deJongh said the effort to have the 3rd Circuit rehear the case doesn’t mean employers want to do away with the WDA completely. He also said it won’t preclude employers from approaching legislators for some amendments to the law.
"Even if it’s not ultimately heard, we have to sit down with the legislators," he said. "There is no way we’re going to get an act that only is going to benefit employers. We want something in the middle."
