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  • Professionals Are Not Protected By the Virgin Islands Wrongful Discharge Act




    Who is covered under the VIWDA?

    The VIWDA applies to all regular employees in the Virgin Islands who have been employed by an employer for at least six (6) months, with certain specific exceptions.

    Who is not covered under the VIWDA?

    The VIWDA does not apply to public employees, seamen, agricultural laborers, volunteers, temporary aliens, or domestic servants.  The VIWDA also does not apply to executives and professionals.

    Who are considered professionals under the VIWDA?

    The VIWDA does not specifically define who qualifies as an executive or professional.  In some cases, the Virgin Islands Department of Labor has turned to the federal Fair Labor Standards Act (FLSA) for guidance.  The FLSA lists some categories of professionals who are exempt from the FLSA:  certified medical technologists, nurses, dental hygienists, physician assistants, accountants, chefs, paralegals, athletic trainers, and funeral directors.  Medical doctors, lawyers, and some teachers are also exempt from the FLSA.  Only persons who meet specific educational and training requirements meet these definitions.

    An employee’s title does not guarantee the FLSA does or does not apply.  Additionally, FLSA may not apply to every employee; however it is important to know that it does not leave an employee without a solution. There may be other ways to enforce the rights outside of the FLSA.

    If you need further information, please do hesitate to call us.

  • Affordable Care Act

    Many clients have asked if and how the Affordable Care Act (“Obama Care”) affects the citizens and employers of the Territory. 

    Simple answer, it doesn’t.

    The Affordable Care Act is designed in three parts:  market reform, which includes guaranteed issue, adjusted community rating, and prohibitions against preexisting condition exclusions and other consumer protections intended to address problems that have been identified in the individual insurance market.   Full application of the Affordable Care Act relies on the definition of the word “state.”  If “state” is defined to include the Territories, then the Act applies.  However, if “state” is defined narrowly to include the fifty (50) states and the District of Columbia, the then the Act does not apply. The ACA does not define the Territory as a State.

    Following passage of the Affordable Care Act, Governor John deJong Jr. created a task force to provide guidance and recommendations regarding initiatives to implement the Act.  The task forces concluded that the disjointed application of the Act’s provisions to the territories and its insufficient allocation of the federal funds significantly limits the Virgin Islands’ opportunity to expand health care coverage to uninsured Virgin Islanders.  Final recommendation to the Governor was to utilize the funding provided under the law to expand Medicaid instead of establishing an Exchange.