Registration of trademarks and trade names in the United States Virgin Islands
Trademarks and Trade Names filed in the United States Patent and Trademark Office (USPTO) may be filed in the U.S. Virgin Islands with the Division of Corporations and Trademarks. Companies who wish to file for trademark protection in the U.S. Virgin Islands will need to file a USPTO certified copy of the mark. This may be done at the option of the applicant by filing a letter of application and an officially certified copy of the trademark registration.. 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.
Virgin Islands Employment Laws
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 Virgin Islands and federal employment laws, and assist you in avoiding unlawful terminations by helping you develop or review your employee handbook and 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.
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.
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 employment 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 in 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.
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. § 422.
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.
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.
Occupational Safety and Health Administration (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 provides:
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 occupational safety and health standards promulgated or adopted under this chapter.
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.
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).
Workers’ 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, Workers’ Compensation Administration. Employers must use the forms provided by the Department for reporting workplace injuries.
24 V.I.C. § 252 provides that:
(a) Every employer shall pay compensation as hereinafter specified for the disability or death of an employee resulting from a personal injury or occupational disease arising out of and in the course of his employment, irrespective of fault as a cause of the injury or death. Compensation shall begin on the first full day of disability, except that compensation for medical attendance provided for at section 254(a) of this chapter shall begin at the time of injury.
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.
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.
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.
Sexual harassment law
The Virgin Islands has adopted its own Sexual Harassment Law which provides:
Employer’s Responsibility and Workplace Policy:
- Adoption of workplace policy and statement
- Promote a workplace free of sexual harassment
- Adopt a policy against sexual harassment that at a minimum must include:
- A statement that sexual harassment in the workplace is unlawful
- A statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment or for cooperating in an investigation of a complaint for sexual harassment
- Provide a description of the process for filing an internal complaint
- Provide the identity of the appropriate territorial and federal employment discrimination enforcement agencies, and directions as to how to contact the agencies.
- Provide employees a written copy of the employer’s policy against sexual harassment, except that, a new employee must be provided such a copy at the time of the new employee’s employment.
- Education and training programs for new employees are required within one year of the new employees hire date, if the employer employees over five employees. (http://doj.vi.gov)
- Employers shall cooperate in making this training available.
- Employers shall provide copies of their written policies on sexual harassment to all employees upon their request.
- Employers shall maintain copies of their written policies on sexual harassment at their business premises, and copies of such policies must be made available to any territorial or federal employment discrimination enforcement agency upon request.
- Any person responsible for sexual harassment in employment as defined shall incur civil liability:
- For a sum equal to double the amount of the damages that the action has caused the employee or job applicant or
- For a sum of not less than $5,000 at the discretion of the court, in those cases in which pecuniary damages cannot be determined. (http://doj.vi.gov) (10 V.E.C. § 64a)
- In addition to: in the judgment in civil actions filed, the court shall order the employer to hire, promote or reinstate the employee in his job and to cease the act in question. (10 V.E.C. § 64a)
Plant Closing Law
The U.S. Virgin Islands has its own Plant Closing Law, in addition to the Federal law, the WARN Act. The plant closing laws in the U.S. Virgin Islands (the “Virgin Islands”) are governed by Title 24 of the Virgin Islands Code (‘V.I.C.”) Sections 471, et seq. (the “Plant Closing Act”). The Plant Closing Act applies to any facility that employed 10 or more employees during any month in a six month period prior to closing. The employer must have been in business for more than one year and, to be eligible, the affected employee(s) must have been employed for more than one year. Further, for the Act to apply the “plant closing” must result in the permanent layoff of at least 50% of the employees at the facility.
If the Act is applicable then the employer is required to provide at least ninety (90) days advance notification of the “plant closing” to the employees, any union that may represent the employees, and the Commissioner of Labor. Following receipt of the notice, the employees (and presumably their union) will have an option for ninety (90) days to purchase the facility, followed by a further right held by the Government of the Virgin Islands the (“GVI”) for an additional sixty (60) days to acquire facility if the employees do not elect to purchase the facility.
If the facility is not purchased by the employees or the GVI, then within one pay period following layoff, the employer must pay every affected employee severance pay equal to one week’s pay for every year of service with the employer calculated at the average wage paid to said employees in the last year of employment. Additionally, if the employer has locations within the Virgin Islands, the laid off employees are given a hiring preference at the other locations and are to be rehired with the same seniority that they had when laid off.