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  • How Does At-Will Employment Interplay With Wrongful Discharge?

    How Does At-Will Employment Interplay With Wrongful Discharge?

    The Virgin Islands Wrongful Discharge Act (Title 24 V.I.C. §76 et. seq.) is a provision of law which controls the “at-will” employment relations in the Territory. Title 24 V.I.C. § 76(a) provides as follows:

    (a) Unless modified by union contract, an employer may dismiss any employee:

    (1) who engages in a business which conflicts with his duties to his employer or which renders him a rival of his employer;

    (2) whose insolent or offensive conduct toward a customer of the employer injures the employer’s business;

    (3) whose use of intoxicants or controlled substances interferes with the proper discharge of his duties;

    (4) who willfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of the employer; provided, however, the employer shall not bar an employee from patronizing the employer’s business after the employee’s working hours are completed;

    (5) who performs his work assignments in a negligent manner;

    (6) whose continuous absences from his place of employment affect the interests of his employer;

    (7) who is incompetent or inefficient, thereby impairing his usefulness to his employer;

    (8) who is dishonest; or

    (9) whose conduct is such that it leads to the refusal, reluctance or inability of other employees to work with him.

    Who Is Excluded from Wrongful Discharge?

    Virgin Islands law has been amended to exclude certain categories of employees from coverage under the wrongful discharge act. Title 24 V.I.C. § 62 defines “employee,” stating that the definition does NOT include any individual:

    • employed as an agricultural laborer
    • employed as a seaman
    • engaged in the catching, taking or selling of any fresh fish, shellfish or crustacea
    • employed in domestic service of any family or person at his home
    • employed by his parent or spouse
    • engaged in the activities of an educational, charitable, religious or non-profit organization where the employer-employee relationship does not, in fact, exist or where the services rendered to such organization are on a voluntary basis
    • employed in a bona fide position in an executive or professional capacity
    • who is an alien temporarily admitted to the Virgin Islands, EXCEPT one who has a currently valid authorization to work for his employer, but does NOT include any person who has been employed by an employer for less than six (6) calendar months or is a public employee, as defined in chapter 14 of Virgin Islands Code Title 24.

    “Employer” includes any person acting in the interest of an employer directly or indirectly that has employed five (5) or more employees for each working day in each of twenty (20) or more calendar weeks in the two (2) year period preceding a discharge, but not a “public employer” as defined in chapter 14 of Virgin Islands Code Title 24.

    If an employer decides to terminate employees, the employer’s grievance procedure should be used, with a record kept in the employee’s personnel file. The exchanges should be documented by a memorandum or disciplinary action form to the employee. THESE PROCEDURES SHOULD BE FOLLOWED UNDER ALL CIRCUMSTANCES.

    An employer is subject to an action for wrongful discharge in the Virgin Islands Superior Court with a risk of reinstatement being ordered, as well as liability for compensatory and punitive damages. Additionally, the employee can file an administrative action for reinstatement and back pay with the Virgin Islands Department of Labor. Finally, a claim for unlawful discrimination based on sex, race or age can be filed with the Virgin Islands Department of Labor and the Federal Equal Employment Opportunity Commission.

    The Virgin Islands Courts have held that an employee is not required to exhaust his or her administrative remedies prior to implementing an action for civil damages for wrongful discharge.