Arbitration and Public Policy

By Wesley W. Horton

If you do arbitration work, you need to read Burr Road Operating Co. v. New England Health Care Employees Union, 316 Conn. 618, decided on May 5. The Supreme Court finally clarified the test for when a court should overrule, on public policy grounds, an arbitrator’s decision not to fire an employee.

The Court set forth a 4-prong test:

  1. guidance from relevant statutes and regulations;
  2. whether the case involves public safety or the public trust;
  3. the egregiousness of the conduct; and
  4. the employee’s incorrigibility.

While prior cases have involved public employees, the rule also applies to private employees, as it did here.

In the Burr Road case, the Supreme Court held that the four factors were neutral or favored the employee, so the arbitrator’s decision not to terminate the employee was affirmed. Our opinion is that it will be an extreme case where an employer in the future convinces a court to order a firing in the teeth of an arbitrator’s decision to the contrary.