May 14, 2013 Labor & Employment Update
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information This alert is one of a series of publications by Murtha Cullina LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own situation and any specific legal questions you may have. If you have any questions about the issues addressed here, or any other matters involving Labor & Employment law issues, please feel free to contact: Susan J. Baronoff Jacqueline DeAndrus Bucar Dena M. Castricone Jennifer A. Corvo Daniel P. Elliott Stella Szantova Giordano Michael Colgan Harrington Lauren Filiberto Hopwood Lauren R. MacLellan Michael C. Markowicz Eric B. Miller Hugh F. Murray, III Lissa J. Paris Louis B. Todisco Barry J. Waters May 14, 2013 Labor & Employment Update APPELLATE COURT VACATES ARBITRATOR’S DECISION REINSTATING EMPLOYEE TERMINATED FOR FAILING TO PROMPTLY REPORT SUSPECTED ABUSE It is not often that a court vacates an arbitrator’s decision. However, last week, in a decision written by former Supreme Court Justice David Borden, the Appellate Court vacated a decision by an arbitrator that reinstated a former employee who had failed to report suspected patient abuse in a timely manner. Westport Healthcare Center employed Leone Spence as a CNA. Ms. Spence was also a member of the New England Healthcare Employer Union, District 1199. During her employment, Ms. Spence received a number of disciplinary actions related to the care she rendered, such as improperly restraining a resident, speaking in an inappropriate rude, loud and scowling manner to a resident, and being disrespectful in addressing a resident. On March 20, 2010, while Ms. Spence was working, she overheard other employees comment that a resident had been crying. During the arbitration, Ms. Spence stated that her sense was that “it could have been abuse but [she] wasn’t sure.” After few days, Ms. Spence contacted a social worker at the facility to report the incident. Ultimately, the facility concluded that the resident had not been abused or neglected, but concluded that Ms. Spence had failed to timely report suspected abuse. Given her disciplinary history, Ms. Spence’s employment was terminated. The arbitrator found: Ultimately, the arbitrator converted Ms. Spence’s termination to a month’s suspension and ordered back pay and reinstatement. As a general rule, an arbitrator’s decision is final, even if it is erroneous. Where there is a general submission of a matter to arbitration, the only question for a court is whether [Ms. Spence] did fail to make a timely report of what she had learned on March 20. She knew the rule that she had to report, and to do so without delay. She failed to fulfill that responsibility in a timely manner. And, she had a poor disciplinary record so that placed her in a worse position record than the other staff members involved in the March 20, 2010 incident involving CJ. On the other hand, there is a significant factor, that it was the grievant, not the others, that did come forward, and report to the Facility, although belatedly; and it was her reporting which allowed the Facility to take corrective actions.
Transcript of May 14, 2013 Labor & Employment Update
information
This alert is one of a series of publications by Murtha Cullina LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own
situation and any specific legal questions you may have.
If you have any questions about the issues addressed here, or any other matters involving Labor & Employment law issues, please feel free to contact:
Susan J. Baronoff
Jacqueline DeAndrus Bucar
Dena M. Castricone
Jennifer A. Corvo
Daniel P. Elliott
Stella Szantova Giordano
Michael Colgan Harrington
Lauren Filiberto Hopwood
Lauren R. MacLellan
Michael C. Markowicz
Eric B. Miller
Hugh F. Murray, III
Lissa J. Paris
Louis B. Todisco
Barry J. Waters
May 14, 2013 Labor & Employment Update
APPELLATE COURT VACATES ARBITRATOR’S DECISION
REINSTATING EMPLOYEE TERMINATED FOR FAILING TO PROMPTLY REPORT SUSPECTED ABUSE
It is not often that a court vacates an arbitrator’s decision. However, last week, in a decision written by former Supreme Court Justice David Borden, the Appellate Court vacated a decision by an arbitrator that reinstated a former employee who had failed to report suspected patient abuse in a timely manner.
Westport Healthcare Center employed Leone Spence as a CNA. Ms. Spence was also a member of the New England Healthcare Employer Union, District 1199. During her employment, Ms. Spence received a number of disciplinary actions related to the care she rendered, such as improperly restraining a resident, speaking in an inappropriate rude, loud and scowling manner to a resident, and being disrespectful in addressing a resident.
On March 20, 2010, while Ms. Spence was working, she overheard other employees comment that a resident had been crying. During the arbitration, Ms. Spence stated that her sense was that “it could have been abuse but [she] wasn’t sure.” After few days, Ms. Spence contacted a social worker at the facility to report the incident. Ultimately, the facility concluded that the resident had not been abused or neglected, but concluded that Ms. Spence had failed to timely report suspected abuse. Given her disciplinary history, Ms. Spence’s employment was terminated.
The arbitrator found:
Ultimately, the arbitrator converted Ms. Spence’s termination to a month’s suspension and ordered back pay and reinstatement.
As a general rule, an arbitrator’s decision is final, even if it is erroneous. Where there is a general submission of a matter to arbitration, the only question for a court is whether
[Ms. Spence] did fail to make a timely report of what she had learned on March 20. She knew the rule that she had to report, and to do so without delay. She failed to fulfill that responsibility in a timely manner. And, she had a poor disciplinary record so that placed her in a worse position record than the other staff members involved in the March 20, 2010 incident involving CJ. On the other hand, there is a significant factor, that it was the grievant, not the others, that did come forward, and report to the Facility, although belatedly; and it was her reporting which allowed the Facility to take corrective actions.
This alert is one of a series of publications by Murtha Cullina LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own lawyer concerning your own
situation and any specific legal questions you may have.
the award conforms to that submission. One exception to this rule is where the arbitrator’s award violates a clear public policy. If a party challenges an award on the grounds that it violates public policy, the party must show: (1) there is an explicit well-defined and dominant public policy, and (2) that the award violates that policy.
In this case, relying upon General Statutes § 17b-451, the Appellate Court held that Connecticut has a clear and well-defined public policy of protecting patients in a facility from abuse and that the policy includes the prompt reporting of any incident of suspected abuse. The court then went on to find that reinstating Ms. Spence’s employment violated that policy:
The court was clear to note that its decision rested in significant part on the fact that Ms. Spence had received prior discipline for care issues. Accordingly, if this was Ms. Spence’s first such offense, the arbitrator’s decision would have likely been affirmed.
It is unclear whether the Union will appeal to the Connecticut Supreme Court or how the Court would rule if they did. However, for the moment, the Appellate Court has expressed an openness to vacating an arbitrator’s decision that raises concerns about resident abuse.
If you have any questions about the issues addressed here, or any other matters involving Labor & Employment Law, please contact your usual Murtha Cullina attorney, or Michael Colgan Harrington at 860.240.6049 or [email protected].
The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protections and reporting, violates that policy because, in the very words of the arbitrator, “any delay in reporting by the staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably in delayed if reporting by staff is delayed.”
