Cause for Worry in Firing Case
A little-noticed court ruling supporting three men fired from their oil-rigging jobs has given a boost to the badly eroded rights of all workers seeking justice in cases of allegedly wrongful discharges.
The intriguing case involves drugs, job safety, unjust firings, a liberal judge and a feisty libertarian judge who is said to be in the running for an appointment by President Bush for the next opening on the Supreme Court.
The 7-year-old incident that triggered all this began when the three non-union employees of Tulsa, Okla.-based Parker Drilling Co. were accused by three co-workers of apparently smoking marijuana on the job. Drug use would be stupid and dangerous because they work on a slippery oil rig in below-zero temperature on Alaska’s North Slope.
The accused men vigorously denied the allegations, had their own witnesses to support them and sued the company for wrongfully discharging them.
Nothing seems to go quickly in these cases, and it didn’t in this dragged-out one. Finally, though, just two weeks ago, a three-judge panel of the U.S. 9th Circuit of Court of Appeals, sitting in Seattle, upheld a jury verdict awarding $360,107 to the three. The company says it will ask for a rehearing, so the workers could still lose their legal battle.
The decision was written by Circuit Judge Stephen Trott, with a furious dissent by Judge Alex Kozinski, who worked for the election of President Ronald Reagan and was appointed by him in 1985.
Kozinski, generally regarded as a Reagan conservative, sees himself more as a libertarian but, regardless of labels, his dissent in the oil workers’ decision and his views in other economic cases clearly put him on the employers’ side.
That means that if he does get a Supreme Court appointment, as speculated, workers cannot expect any help from him in legal battles with their bosses.
Trott and Judge Stephen Reinhardt, the most consistent liberal on the court, ruled for the workers and upheld the jury’s award to the men. Trott, writing the majority opinion, kept it simple: The jury made the decision, and there was no reason to strike it down.
But in his lengthy dissent, Kozinski argued vehemently that it was wrong to let the jury decide anything more than whether the employer had a “good-faith belief” that the workers had really smoked marijuana on the hazardous job.
Since Kozinski figured that the company truly believed the men to be guilty, it didn’t make any difference whether they actually were, and, thus, the company was justified in firing them.
Kozinski said a jury should not be allowed to second-guess management’s termination decisions and asked sarcastically whether employers should be required to catch the workers “with a lit joint hanging from their lips before they can dismiss them for misconduct.”
The men were not tested for drug use before they were fired. But in his libertarian mode, Kozinski scoffed at the idea of using drug testing as an alternative to allowing management to decide whether to fire workers suspected of drug use.
Drug testing would constitute a “serious invasion of the privacy of all their employees,” he contended. Yet most liberals and conservatives accept the need for testing workers engaged in highly dangerous jobs or who might endanger themselves or others.
Reinhardt was outraged by Kozinski’s “blatant disdain for the fundamental concept of guilt and innocence” by raising “the employer’s beliefs to the status of an eternal verity.”
If an employer believes that a worker is guilty, then Kozinski argues that he must be guilty, and “off with the worker’s head,” Reinhardt fumed in understandable indignation. “Even the unanimous judgment of a jury that the workers were innocent cannot shake my colleague’s faith in employer omniscience,” he wrote in a concurring opinion.
Although it appears that the appeals court’s ruling will stand, Kozinski’s dissent to it bodes ill for workers if his philosophy prevails on that court or if he moves up to the Supreme Court.
The decision takes on added importance to workers when viewed in historical perspective.
Until 1980, employers always had the legal right to fire non-union workers at any time, with no notice, for any reason or for no reason at all--as long as the discharges were not based on race, religion, sex or national origin. (Union workers are almost always protected from arbitrary dismissal by their union contracts.)
Then, a decade ago, the courts began to curb that unrestrained power of employers over non-union workers, holding that workers have a vested interest in their jobs and can be fired only for a “good cause,” such as stealing.
That admirable trend was slowed considerably last year when the conservative California Supreme Court helped employers by ruling that workers can still sue for alleged wrongful discharges but that they can get relatively little money--based on actual lost income.
Workers who have been unjustly fired cannot get any award for emotional distress or punitive damages, the court held.
The sharp reduction in the size of awards meant that most workers could no longer afford to hire lawyers because in these cases they are paid on a contingency fee basis--no award, no legal fee.
Paul Grossman, a management attorney, estimates that that court decision has cut the number of wrongful discharge cases in half.
Bad as that ruling was for workers, those found to have been fired without good cause can still collect their lost pay--if they can find a lawyer to take their case.
That slight advantage could become a minimal one if Kozinski’s views about the rights of employers ultimately prevail and “outsiders” such as court juries and presumably neutral arbitrators are not allowed to “second-guess employers’ good faith” decisions to fire workers.
