The Blog

  • 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.

  • Probate Actions: Important Considerations

    Probate Actions:  Important Considerations

    How do I safeguard my family’s assets?

    Losing a family member is almost always a difficult and overwhelming experience.  When a family member passes, it is important that the person’s home(s), land, financial accounts, vehicles or boats, and personal belongings are properly distributed to his or her heirs.  If the proper procedures are not followed, questions regarding true ownership of the assets could arise years, or even decades later.  It can be much more difficult, complicated, and expensive to resolve these issues as more time passes.

    In the Virgin Islands, there are different procedures for probate depending on the value of the property and whether or not there is a valid will.  A competent probate attorney can help you navigate the probate process and help safeguard your family’s assets by ensuring the property is properly distributed according to law.  Additionally, careful estate planning can eliminate the need for a probate case altogether.




    The Case That Changed How Companies Appear in Small Claims Court…..but Didn’t

    How do off island creditors collect debts that are under $10,000.00 in the U.S. Virgin Islands?

    On June 28, 2013, the Superior Court of the Virgin Island’s issued Newman v. MacKay, 58 V.I. 170.  This case has come to be known as the case that held that businesses must appear in [small claims] matters by a [personal representative] that is either a principal owner of the business or an employee who has been authorized to bind the business in the small claims matter.  However, the Newman decision was only an adjunct to the case that actually held this, Gil Ron Jewelry v. Diamond World, ST-11-SM-380, an unpublished small claims decision by Magistrate Alan Smith.

     The facts of Gil Ron were simple.  Mr. Newman, who was not a licensed attorney, would have his clients complete a form that assigned him as a personal representative to appear on the client’s behalf in a small claims proceeding.  Mr. Newman would get a percent of any funds recovered.  Magistrate Smith explained that Section 112(d) of Title 4 of the Virgin Islands code provides that no party in a small claims matter may be represented; however, as an exception, this section provides that businesses may appear by personal representative.  As such, sole proprietors must appear in small claims matters personally.

    Section 112(d) does not define “personal representative,” however.  Magistrate Smith, in interpreting this provision to provide a “workable” definition of personal representative, explained that this section represents two competing policy interests.  These policies were the prohibition of the unauthorized practice of law and allowing parties to have access to small claims matters in a simple and inexpensive manner.  Section 112(d) is the only provision of the Virgin Islands Code that allows a non-attorney to appear on behalf of a business entity; but the Court cannot condone the practice of law by a non-attorney.  As such, the court found it reasonable and necessary to limit personal representatives to those with an on-going relationship to the business including those with the authority to bind the business by their position as an officer or manager and those who are granted specific authorization to appear in a small claims matter.  The Superior Court’s Appellate Division affirmed this decision finding the “rationale and the balance struck between these competing policies to be well reasoned and correct.”  The Appellate Division further explained that personal representatives must have personal knowledge of the facts underlying the small claims complaint.  In further clarification, the court explained that a power of attorney does not authorize a person to appear in a small claims matter absent an ongoing relationship with the business.

     What this means for businesses trying to [collect debts] in the Virgin Islands is that each business is limited to having either an officer or manager appear or have an employee or other person with an on-going relationship appear.  In an effort to help such businesses, The Law Offices of Karin A. Bentz, P.C. offers small claims counseling and help with the required forms.

  • 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.

  • New Time Standards For Superior Court Cases

    Why does the Superior Court need time standards for adjudicating cases?

    Timely disposition of court cases has long been a concern in the U.S. Virgin Islands. Constitutional considerations require criminal matters to be adjudicated within certain time frames. However, these standards do not apply to civil cases. Complex civil matters have often taken second priority in recent years, resulting in lengthy litigation and delayed disposition of cases. Many state and local courts have adopted time standards to improve the quality of services provided to the public.

    How long does it take for a Superior Court case to be decided?

    In 2013, the Superior Court acknowledged the problem of protracted litigation and took significant steps toward resolving the issue by adopting time standards to increase efficiency and productivity. The time standards took effect on June 1, 2013. Significantly, routine civil matters are now to be disposed within 270 days (approximately 1 ½ years) and “more complex” civil matters are to be resolved within 730 days (2 years) of filing. Most other civil matters are to be resolved within 90 days of filing. However, it is important to note these time standards represent goals for the disposition of cases and are not guarantees that any individual case will be decided within a particular time frame.

    How will the adoption of time standards impact Virgin Islands litigants?

    These time schedules establish goals the Superior Court will strive to achieve moving forward. For litigants, the time standards represent a renewed commitment to improving access to the courts and increasing public confidence in the justice system. These standards will help protect the rights of Virgin Islanders, since justice delayed truly is justice denied.

  • 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.