It is unlikely the full Third Circuit Court of Appeals will re-hear the business community's challenge of the territory's wrongful discharge law, attorney Adriane J. Dudley said Thursday afternoon in an address to St. Thomas Rotarians.
In her remarks before a luncheon meeting of Rotary II at Marriott's Frenchman's Reef Beach Resort, Dudley said that the July 7 ruling by a three-judge appellate court panel, while not the decision the business community wanted, nonetheless marked a significant moment in the history of Virgin Islands jurisprudence.
"I think it's important to note this is one of the few cases where the rights of the Virgin Islands are articulated on a par with states," Dudley said. From a business community perspective, she said, "I think it's important to note that, while we may not be crazy about the results, we have to take a further look at the fact that the Virgin Islands is starting to come into its own as a jurisdiction with a body of law to be respected."
The territory's wrongful discharge law restricts the rights of employers to terminate employees to nine specific circumstances. It was enacted over the objections of the business community some years ago and has been a bone of contention in the private sector ever since.
What prompted the legal challenge leading to the recent circuit court action was a ruling in a case last February by District Judge Thomas K. Moore that the territorial law was preempted by the National Labor Relations Act. Based on that ruling, the St. Thomas-St. John Chamber of Commerce, St. Thomas-St. John Hotel and Tourism Association and St. Croix Hotel and Tourism Association asked Moore for an injunction to stop enforcement of the act, and Moore granted the injunction in April.
Then the V.I. government appealed the case to the Third Circuit, which reversed Moore's ruling and held that the local statue was not federally pre-empted.
Among the issues addressed in the various court rulings, Dudley said, was whether the law was applicable to non-union contracts between employers and employees. Federal law says an employee has the right to join a union but also the right not to do so. The V.I. statute states that the conditions for termination apply "except as provided by union contract." Since the circuit panel held that the V.I. law was not pre-empted by federal law, the provisions remain in place, although the issue itself was not resolved in the ruling.
The three-judge panel held, among other things, that the three business associations lacked legal standing in the case. Since then, the business groups have organized a petition campaign asking the full Third Circuit Court to reconsider the decision.
Dudley said the nine conditions listed in the act as the only acceptable bases for termination make it almost impossible for employers to fire unsatisfactory workers. She added that it was a negative experience with an employee in her own office that compelled her to learn more about the law.
However, she told the Rotarians, since the decision by the three circuit judges was unanimous, the chances the full 14-member circuit court will reconsider the case are slim.
Dudley, a past president and the current secretary of the St. Thomas-St. John Chamber of Commerce, said her advice to the business community on how to deal with the problems posed by the wrongful discharge law was to make a concerted effort to support business-friendly candidates in the coming November elections.
