Judge Moore’s Opinion was issued while I served as Legal
Counsel/Director of Labor Relations at the V.I. Department of Labor.
During that time, I had the distinct opportunity of serving on the legal
team on behalf of the Government of the Virgin Islands. The team which
consisted of attorneys from the Department of Justice and Legal Services
of the Virgin Islands defended the validity of The Act. In his analysis,
Judge Moore found that The Act to be invalid because it is preempted by
federal labor law and violates the National Labor Relations Act by
interfering with the right of the private employer and employee to
negotiate employment contracts outside of the collective bargaining
process.
Judge Moore specifically took issue with The Act, as amended in 1996.
He relied in large part on the statistics compiled by The Department of
Labor to challenge the effectiveness of the administrative process for
Wrongful Discharge. As my staff at the Department of Labor began to
perform the tedious task of compiling the data, it became evident that the
figures and percentages did not accurately reflect the effectiveness of
The Wrongful Discharge process.
As it exists, the administrative process at the Department of Labor is
not costly and it serves to assist private employees, most of whom are
unrepresented and would not be able to afford a similar court proceeding.
Pursuant to 24 V.I.C. §76, remedies under The Act provide for
reinstatements or backpay. On the
average, there was a relatively low employee reinstatement rate of 3%
during the three year period from 1996 to 1998. Statistics for the same period of
time reflected that more than half of the affected employees sought and
received backpay as opposed to reinstatement.
Judge Moore’s controversial ruling in Bell vs. Chase appeared
to have been embraced by pro-business advocates and chastised by labor
proponents. Was the opinion in and of itself flawed or was it simply a far
reaching attempt to invalidate The Act in its entirety?
While both sides continue to make fairly convincing arguments, it has
become more and more evident that The Legislature will play a significant
role in the final outcome, provided that the senators have the
"political will" to act. Such action would entail amending or
reintroducing legislation. If the legal opinion issued by the Legal
Counsel’s Office at the Legislature of The Virgin Islands is any
indicator, abolishing The Act in its entirety may not sit well with a
majority of the current Legislators. The key players, including
businesses, labor representatives and the public and private sector
collectively, have publicly pledged to work together to strike a balance
and achieve an outcome that would work to the benefit of the entire
community.
Conversely, silence may speak volumes as far as the latent intent to
revert to an "At Will Jurisdiction". Given our critical economic
condition in the Territory, the added leverage and autonomy for private
employers and employees should not necessarily be written off without due
consideration for what may inevitably be in the best interest of the
Territory.
In any society, the workforce is the backbone of the economy and should
be given its due respect. The local workforce is comprised of employers
and employees who must work in collaboration to achieve economic
advancement. All parties must be able to co-exist peacefully and
harmoniously in order to promote the best interest of the Virgin Islands.
Evidently, the territory is poised in a "wait and see" position
as it pertains to The Act.
In the interim, Judge Moore has permitted the Department of Labor to
mediate wrongful discharge cases and Wrongful Discharge complaints
continue to be filed in Territorial Court. Let’s keep stay tuned to see
what the next move will be!!!! Any of my colleagues want to take a bet on
the odds, feel free to email me with your comments at nnesq@vilegal.com
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