Dudley, Topper and Feuerzeig, LLP USA - U.S. Virgin Islands

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1 LABOR AND EMPLOYMENT DESK BOOK Dudley, Topper and Feuerzeig, LLP USA - U.S. Virgin Islands CONTACT INFORMATION Rebecca E. Weiss Dudley, Topper and Feuerzeig, LLP rweiss@dtflaw.com 1. Do you have a plant closing law in your jurisdiction and if so, what does it require? (For U.S. jurisdictions, please answer: Is there a Baby WARN Act in your state and if so, what does it require?) Yes. 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 the 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

2 said employees in the last year of employment. Additionally, if the employer has other 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. Finally, because the Virgin Islands is a United States territory, it is subject to the analogous federal statute, i.e., the WARN Act in circumstances where said Act would apply. 2. Are there special rules on releases/waivers in your jurisdiction? 3. What are the equal employment opportunity/ non-discrimination categories in your jurisdiction (For U.S. jurisdictions, please answer: Are there protected categories beyond Title VII in your state?) The Virgin Islands Discrimination in Employment statute prohibits discrimination in employment on the basis of race, sex, age, religion, color or ancestry. 24 V.I.C. 451, et seq. Discrimination in employment on the basis of race, creed, color or national origin is also prohibited under the Virgin Islands Civil Rights Statute. 10 V.I.C. 1 et seq. As a United States territory, the Virgin Islands is also subject to the analogous federal statutes, such as Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act. 4. What are the minimum wage and overtime rules (and exemptions) in your jurisdiction? The current minimum hourly wage in the Virgin Islands is $6.55. Pursuant to the Virgin Islands Fair Labor Standards Act (the Fair Labor Standards Act ), employers are required to pay 11/2 times the regular rate of pay to employees who work a) more than five (5) consecutive days; b) more than forty (40) hours in a workweek; or c) for longer than eight (8) hours in a workday. 24 V.I.C. 20. Certain exceptions are made for employers in the tourist service or restaurant industry. Id. Additionally, employees under the Fair Labor Standards Act do not include certain individuals including, but not limited to, those employed in domestic service in a private home;... employed in a bona fide executive, administrative, or professional capacity;... or employed by the United States, or by the Government of the... Virgin Islands or any instrumentality thereof. 24 V.I..C. 2. As a United States territory, the Virgin Islands is also subject to the analogous federal Fair Labor Standards Act. 5. Is there employment-at-will, or some other rule, in your jurisdiction? What are the exceptions?

3 Employees who have been employed with an employer for six (6) calendar months or more are protected by the Virgin Islands Wrongful Discharge Act (the WDA ). To be considered an employer under the WDA, the person or entity must have employed five (5) or more employees for each working day in each of the twenty (20) or more calendar weeks in the two (2) year period preceding a discharge. 24 V.I.C. 62. Under the WDA, and unless modified by union contract, an employer may dismiss an employee: a) who engages in a business which conflicts with his duties to his employer or renders him a rival of his employer b) whose insolent or offensive conduct toward a customer of the employer injures the employer's business; c) whose use of intoxicants or controlled substances interferes with the proper discharge of his duties; d) who wilfully 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; e) who performs his work assignments in a negligent manner; f) whose continuous absences from his place of employment affect the interests of his employer; g) who is incompetent or inefficient, thereby impairing his usefulness to his employer; h) who is dishonest; or i) whose conduct is such that it leads to the refusal, reluctance or inability of other employees to work with him. * * * Additionally, an employer may terminate an employee as a result of the cessation of business operations or as a result of a general cutback in the work force due to economic hardship, or as a result of the employee s participation in unprotected concerted activity. 24 V.I.C. 76. Individuals who are not considered employees under the WDA and thus not protected by the statute include any individual employed as an agricultural laborer or as a seaman or engaged in the catching, talking or selling of any fresh fish, shellfish or crustacea, or in domestic service of any family or person at his home, or any individual employed by his parent or spouse, or an individual 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 or any individual employed in a [bona fide] position in an executive or professional capacity; or any alien temporarily admitted to the Virgin Islands, except one who has a currently valid authorization to work for his employer.... Furthermore, certain public employees are not covered by the WDA. 24 V.I.C What are the legal obligations upon terminating an employee in your jurisdiction?

4 Terminated employees are entitled to all of their earned wages. 7. Are there any family and/or medical leave laws in your jurisdiction, and if so, what do they require? (For U.S. jurisdictions, please answer: Are there family and/or medical leave laws in your state beyond FMLA and if so, what do they require?) 8. Please list any miscellaneous, interesting or oddball laws in your jurisdiction, and state under what circumstances they pertain. With certain exceptions, an employer is required to provide employees with paid ten minute rest periods within each four hours of continuous work. 24 VIC 20a. The rest periods may not be added to a meal period nor be taken at the beginning or end of a work period. Id. Additionally, unless otherwise provided in a written contract or by a collective bargaining agreement, an employer must provide an employee who works for a continuous period of seven hours or longer with an uninterrupted meal period of not less than 30 minutes. 24 VIC 20b. The meal period must begin no later than five hours after the start of the work period. 24 VIC 20b. 9. Does your jurisdiction have a law requiring employers to give employees access to, or a copy of, their personnel records? Yes. An employee is, at reasonable times, allowed to inspect his or her personnel records. 24 V.I.C An employer is required to make the records available during regular business hours of the office where the records are usually and ordinarily maintained. If the records are maintained at a geographic location other than the employee s normal place of business, then the employer shall, within two weeks of any request, make the files or their duplicate available at the employee s normal place of business. An employer is not required to provide employees with copies of their personnel records. 10. Does your jurisdiction outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of testing? 11. Does your jurisdiction have any special rules on the payment of sales commissions? 12. What are the basic rules on enforcing non-competes and related agreements in your jurisdiction? The Virgin Islands follows the Restatement (Second) of Contracts in determining the validity of a non-competition agreement in the employment context. A non-competition

5 employment contract may be void if it is an unreasonable restraint on competition and therefore unenforceable as against public policy. If either the restraint is greater than necessary to protect the promisee s legitimate business interest, or alternatively, the promisee s need is outweighed by the hardship on the promisor and the likely injury to the public then the restraint will be held unreasonable. V.I. Diving Schools/Supplies v. Dixon, 20 V.I. 54, 58 (V.I. Terr. Ct. 1983) (citing Restatement (Second) of Contracts 188(1)). Virgin Islands courts have looked at the following five factors in determining whether a restrictive covenant in the agreement not to compete is reasonable and thus valid and enforceable: (1) the duration of the restriction; (2) the area of the restriction; (3) whether the interest of the employer is reasonable protected; (4) whether there is an undue hardship imposed on the employee; and (5) whether the public interest is reasonably protected. Williamson v. Hess, 16 V.I. 284, 292 (V.I. Terr. Ct. 1979).