Let’s start with this example:
Employee X is required by law to report suspected abuse in her job. She fails to do so for a few days, but ultimately does. After investigation, employer terminates employee for her failure to report the suspected abuse and notes that she had been on “final” warning for previous misconduct. Employee and her union appeal. After a hearing, an arbitrator reinstates the employee while similarly stating that she should be subject to a one month unpaid suspension. Employer appeals saying the arbitration decision violates the important public policy of reporting suspected abuse.
That’s the ground work for a new Connecticut Supreme Court decision (Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199) that will be officially released next week.
The court said that it was not readily disputed that Connecticut has a clear, well-defined public policy of protecting nursing home residents from abuse. Thus, the sole issue for the court was whether the arbitration decision violates that important public policy.
In doing so, the court emphasized that a party seeking to vacate an award reinstating a terminated employee “bears the burden of proving that illegality or conflict with public policy is clearly demonstrated. ” But the court was quick to note that a consensus on how to handle such claims was “elusive” from its prior decisions.
Thus, the court said it was using this case to “take this opportunity to clarify the factors a reviewing court should consider when evaluating such a claim.”
When a court speaks like this, it’s probably worth listening to. And what are those factors? This is where it gets complicated with factors upon factors. First:
Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.
Of course, each of these factors have their own set of considerations as well. For example, on the relative “egregiousness” factor, the court said it encompasses “myriad considerations” including, but not limited to:
(1) the severity of the harms imposed and risks created by the grievant’s conduct; (2) whether that conduct strikes at the core or falls on the periphery of the relevant public policy; (3) the intent of the grievant with respect to the offending conduct and the public policy at issue; (4) whether reinstating the grievant would send an unacceptable message to the public or to other employees regarding the conduct in question; (5) the potential impact of the grievant’s conduct on customers/clients and other nonparties to the employment contract; (6) whether the misconduct occurred during the performance of official duties; and (7) whether the award reinstating the employee is founded on the arbitrator’s determination that mitigating circumstances, or other policy considerations, counterbalance the public policy at issue.
And what does it mean to be “incorrigible”? Well again, the court sets forth various considerations:
Here, relevant considerations include whether, on the one hand, the grievant has committed similar offenses in the past and has disregarded an employer’s prior warnings or clear policy statements; or, on the other hand, whether the grievant: (1) has generally performed his work in a competent and professional manner; (2) has demonstrated a willingness to change and an amenability to discipline; (3) has exhibited remorse and attempted to make restitution for past offenses; and (4) is likely to benefit from additional training and guidance.
But that’s not all. “We also consider whether the penalty imposed by the arbitrator is severe enough to deter future infractions by the grievant or others.”
So if you’re keeping track at home, that’s over a dozen considerations for the court (and the parties) to address.
Ultimately, the court in this case upheld the arbitrator’s original decision reinstating the employee applying all of the factors set forth above.
For employers, this case provides a roadmap on challenges to an arbitrator’s decision reinstating a terminated employee. But beware: This map shows a lot of different paths for courts to follow. Many of those several ways lead to the same conclusion: Challenging an arbitrator’s final decision remains an uphill battle at best.