Trademarks and Trade Names filed in the USPTO may be filed in the U.S. Virgin Islands with Office of Corporations and Trademarks. Companies who wish to file same in the U.S. Virgin Islands will need to file a U.S. Patent and Trademark certified copy of the above mentioned mark(s) in the United States Virgin Islands. This may be done at the option of the applicant and upon filing a letter of application and an officially certified copy of the trademark registration and, by a copy, specimen, facsimile or counterpart of the trademark. There is a fee for this registration. We will also file a power of attorney advising that we have the authority to enforce the mark in this Territory.
If you have been an employer in a mainland-U.S. business, you are probably familiar with the term "Employment-at-Will", which is the rule of law in a majority of the states. However, in the U.S. Virgin Islands, the Legislature has enacted a Wrongful Discharge statute. Employment-at-Will means that, in general, you can terminate an employee for any reason or for no reason (as long as you are in compliance with federal statutes regulating age, race, disabled, sex discrimination and the Family Medical Leave Act among others). Under the Virgin Islands Wrongful Discharge statutes, there are certain permitted grounds for termination and unless the termination is one of these, it may be wrongful and can cost your business a substantial amount of money. We can assist with counseling you on territory and federal employment laws, and assist you in avoiding unlawful terminations by helping you develop or review your:
Basic Employee Handbook
and by reviewing your:
Employee Evaluation Procedures
In addition, we will advise you of how similar companies structure employment arrangements and compensation and how they attract and provide incentives for employees.
Disclaimer:
The following is a brief synopsis of some of the Virgin Islands Labor Laws but is not intended as legal advice or as a comprehensive list of all labor laws.
HIRING PREFERENCES
V.I. businesses must hire resident workers (U.S. Citizens and legal aliens) before non-resident workers (aliens), where qualified resident workers are available.Non-resident workers may be used only to supplement the resident labor force. Title 24 V.I.C. 126.
EMPLOYMENT SERVICES
The V.I. Employment Security Agency (VIESA) provides the function of assisting job seekers and employers by matching local labor supply and demand for workers through counseling, information, training, referral and placement services. In addition to providing job market information, VIESA provides special services for veterans, disadvantaged youths, older workers, and handicapped employees.
WAGE AND HOUR LAWS
U.S. Virgin Islands' businesses must abide by U.S. Federal Labor laws such as minimum wage and hours standards and occupational health and safety. Title 24, Chapter 1, Fair Labor Standards, is basically the same as Federal law regarding minimum wages. The local law, Title 24 V.I.C. 20 (HOURS OF WORK), has a special exemption for employers for the tourist and restaurant industry allowing employers to schedule their employees for six (6) consecutive days of work as long as the employee is guaranteed forty (40) hours of work. Thus, the usual requirement of time-and-a-half for the sixth consecutive day is avoided provided the forty (40) hour limit is not otherwise exceeded. This section provides in part:
(a) No employer shall employ any of his employees for (1) more than 5 consecutive days, or (2) longer than a total of 40 hours in a workweek, unless otherwise provided for pursuant to section 6(e) of this title, or (3) for a workday longer than 8 hours, unless such employee received compensation for his employment (1) on a sixth and/or a seventh consecutive day of work, or (2) in excess of 40 hours in a workweek, or (3) in excess of 8 hours in a workday, whichever excess is calculated to give the employee the greatest compensation, at a rate not less than one and one-half times the regular rate at which he is employed.
(b) Notwithstanding subsection (a) of this section, an employer in either a tourist service or a restaurant industry may employ an employee for 6 consecutive days, provided, however, that such employee is employed for not less than 40 hours in the workweek during which any part of the 6 consecutive days are worked. No such employer shall employ any such employee for (1) more than 6 consecutive days, or (2) longer than a total of 40 hours in a workweek, unless otherwise provided for pursuant to section 6(e) of this title, or (3) for a workday longer than 8 hours, unless such employee receives compensation for employment (1) on a seventh consecutive day of work, or (2) in excess of 40 hours in a workweek, or (3) in excess of 8 hours in a workday, whichever excess is calculated to give the employee the greatest compensation, at a rate no less than 1-1/2 times the regular rate at which he is employed.
(c) Except in the case of either a tourist service or a restaurant industry, whenever an employee is regularly required to work on more than one shift, all of which fall within one calendar day, and the interval between such shifts exceeds two hours, the employer shall pay compensation to the employee at the regular rate for the period of such interval in excess of two hours. The provisions of this paragraph shall not affect the payment of overtime compensation when such payment is otherwise applicable.
Managers are exempted from the provisions of the Fair Labor Standards Act with regard to overtime pay. 24 V.I.C. 2.
PERSONNEL FILES
Employees are entitled to review their personnel files upon request, with reasonable notice and at reasonable times, at their normal place of employment. Title 24 V.I.C. 421 et seq.
IMMIGRATION LAWS
The Federal Immigration Laws concerning proof of citizenship and status of all employees are applicable and are strictly enforced. All I-9 and other Immigration and Naturalization Service forms must be carefully checked for proper completion and retained on file on the premises for possible inspection.
LABOR RELATIONS
24 V.I.C. 64 Rights of employees -- Employees shall have the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection free from interference, restraint or coercion by employers.
OSHA
The local Department of Labor administers Federal and local OSHA regulations under Title 24 V.I.C. Chapter 2.
24 V.I.C. 35 Each employer (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with ccupational safety and health standards promulgated or adopted under this chapter.
EMPLOYMENT DISCRIMINATION
Laws dealing with discrimination in employment are included in Title 24 V.I.C. Chapter 17 and parallel the Federal Equal Employment Opportunity law. The Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA) and Family Medical Leave Act are applicable.
LABOR COSTS
Non-wage labor costs include social security (OASI) and unemployment insurance (VIESA), which operates like most state systems (Title 24 V.I.C. Chapter 12).
WORKER'S COMPENSATION
Workmen's compensation insurance is mandatory for every employer of one or more persons. Premium rates vary with the classification of employees. The program is administered through the Virgin Islands Department of Labor, Workmen's Compensation Division. Employers must use the forms provided by the Department for reporting work place injuries.
24 V.I.C. 252 The provisions of this chapter shall apply to all accidents occurring within the Virgin Islands and to accidents occurring to employees of the Government of the United States Virgin Islands who are engaged in duly authorized business of the Government outside the Virgin Islands.
HIRING, TERMINATIONS, CUTBACKS, LAYOFFS
In general, the procedure and guidelines for hiring, terminations, cutbacks and layoffs are controlled by company policy, subject to Federal and local statutory provisions and regulations concerning hiring, discrimination, wrongful discharge and plant closings.
WRONGFUL DISCHARGE
The 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.
Virgin Islands law has been amended to exclude certain categories of employees from coverage under the wrongful discharge act. Title 24 Section 62 defines "employee" stating that the definition does NOT include any individual:
"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 you decide to terminate employees, the step 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. The status of the wrongful discharge act is currently under review, see Bell v.Chase Manhattan Bank, Civil No. 97-129, slip. Op. (D.C.V.I. )
PENALTIES
An employer is subject to an action for wrongful discharge in the Territorial 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 Opportunities 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.
LAYOFFS DUE TO ECONOMIC CONDITIONS According to the provisions of Title 24, 76(c) of the Virgin Islands Code, an employer terminating or laying off an employee as part of a cessation of business in the Territory or a general cutback in its work force for economic reasons is exempted from the provisions otherwise prohibiting terminations or layoffs for reasons other than those specified by law as set out above. Plant Closings The U.S. Virgin Islands has enacted its own Plant Closing Act. |
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Disclaimer:
These materials are presented with the understanding that the publisher does not render any legal, accounting, or other professional service. Due to the rapidly changing nature of the law, information contained in these publications may become outdated. As a result, an attorney using these materials must always research original sources of authority and update this information to ensure accuracy when dealing with a specific client's legal matters. In no event will the authors, the reviewers, or the publisher be liable for any direct, indirect, or consequential damages resulting from the use of these materials.