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Charlotte Amalie
Saturday, July 20, 2024


Local business groups were dealt a setback last week when the 3rd Circuit Court of Appeals voted to deny their request for a rehearing on its decision to uphold the territory’s Wrongful Discharge Act.
Lawyers representing the St. Thomas-St. John Chamber of Commerce, the St. Thomas-St. John Hotel Association and the St. Croix Hotel and Tourism Association had hoped that the full 14-judge 3rd Circuit would reevaluate a decision made by the court’s three-judge panel June 30 that overturned a local injunction against the WDA.
"We did not get a majority to vote for a rehearing," said Charles Engeman, the attorney for the employers. "We need to consult on what, if any, further steps will be taken."
The business groups have 90 days to decided if they want to take the matter to the next level, he said.
"There is an outside shot of taking it to the Supreme Court," Engeman said.
John deJongh Jr., president of the St. Thomas-St. John Chamber of Commerce, was unavailable Tuesday to comment on what businesses may decide next. In a prior interview he said whether the 3rd Circuit rehears the case or not, employers will approach local legislators to have the Wrongful Discharge Act modified.
The business community isn’t entirely opposed to the act, deJongh has said. But employers do have problems with the lack of a probationary period for employees and of provisions for downsizing. They also say the law's administrative provisions are inadequate.
"It will take some time" to amend the law, Engeman said. "The chamber is going to pursue the legislative agenda to help businesses in the Virgin Islands try and survive."
Meanwhile, he said the issue of whether the act applies to supervisors and managers is still open. That question wasn’t addressed in February when V.I. District Court Judge Thomas K. Moore granted an injunction against the V.I. Labor Department from hearing any more wrongful discharge cases.
Moore ruled that the territory's Wrongful Discharge Act is directly pre-empted by the federal National Labor Relations Act. Among the issues addressed in Moore's ruling was whether the local law was applicable to non-union contracts between employers and employees. Federal law says an employee has the right to join a union but also the right not to do so. The V.I. statute states that the conditions for termination apply "except as provided by union contract."
In a second and separate analysis, Moore said the local act "violates national labor policy by interfering with the free play of economic forces in the private labor market which Congress has intentionally left unregulated."
Labor Commissioner Sonia Jacobs-Dow was unavailable for comment Tuesday, so it is unclear whether the department will resume hearing wrongful discharge cases. Because of Moore’s injunction, a backlog of cases has accumulated.
Based on the amount of annual cases in past years, Engeman estimated that 300 to 500 cases are waiting to be heard by Labor’s two hearing officers.
"We believe the Department of Labor has handled these cases well over the last several years," Engeman said. "But we should require the administrative route rather than backlog the courts."
Under the V.I.’s labor law, there are nine reasons for an employer to justifiably terminate an employee. Those include the employee:
– Engaging in conflicting business.
– Engaging in insolent or offensive conduct.
– Using intoxicants or controlled substances that affect the employee's work.
– Disobeying reasonable rules or instructions.
– Being negligent, incompetent, inefficient, dishonest or unable to work with others.
– Regardless of the employee's behavior, economic hardship of the employer.
According to the V.I. Code, any employees terminated for any other reasons are considered to have been wrongfully discharged.

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