Conducting business in the Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part blog series will offer tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part five of this series addresses workplace rules, orders, and instructions.
Tip 5: Formulating, Distributing, and Enforcing Workplace Rules, Orders, and Instructions
Unlike virtually all U.S. jurisdictions, Virgin Islands law incorporates an exception to the common law employment-at-will doctrine for certain categories of nonunionized private sector employees. The Wrongful Discharge Act (WDA) permits an employer to dismiss any employee “who willfully and intentionally disobeys reasonable and lawful rules, orders, and instructions of the employer.” Regardless of whether the WDA is applicable, employers may encounter situations where discharge or other disciplinary action is contemplated for a violation of a workplace rule, order, or instruction. Such situations raise several issues that employers may wish to consider.
Identifying Workplace Rules, Orders, and Instructions
The WDA states that a workplace rule, order, or instruction must be “reasonable and lawful.” Apart from the statutory prohibition against rules that “bar an employee from patronizing the employer’s business after the employee’s working hours are completed,” the WDA does not define the concepts of reasonableness and lawfulness. However, employers may wish to review workplace rules to ensure that the rules, orders, and instructions do not inadvertently implicate other applicable legal provisions, such as wage and hour laws, laws concerning workplace safety, or other federal or territorial laws applicable to an employer’s business operations.
Rules that establish blanket prohibitions, such as a rule that prohibits a nonexempt employee from receiving compensation for overtime pay absent prior written authorization, or that contains a strict attendance requirement, may be susceptible to a claim that the rule violates another provision of applicable law, either as written or as applied in a specific situation. Employers also may wish to be mindful of evolving workplace norms, and adopt or modify rules, orders, and instructions accordingly. For example, in the wake of the COVID-19 pandemic, provisions related to use of face coverings, health screenings, temperature checks, and/or other testing are becoming increasingly common in the workplace.
Communicating Workplace Rules, Orders, and Instructions
Absent actual communication of a workplace rule, order, or instruction, employers may face liability for violating the WDA. Such expectations may be contained in employee handbooks or memoranda to employees, but employers may wish to be mindful of maintaining records evidencing employee receipt of workplace rules Documents bearing an employee’s wet signature can be useful even in an electronic age, but if the only acknowledgment is electronic, employers may wish to ensure that appropriate safeguards exist to prevent individuals other than the affected employee from furnishing such acknowledgments. Employers may wish to consider implementing procedures to notify employees about “business critical” rules, orders, or instructions on a semiannual or annual basis, or at other appropriate intervals in order to underscore the importance of these provisions. Depending upon the complexity and significance of the rule, order, or instruction, it may be appropriate to provide training to reinforce employee understanding of the workplace requirements.
As noted, employers covered by the WDA also must demonstrate that a violation is “wilful and intentional.” Needless to say, it can be difficult to satisfy this requirement if the rule, order, or instruction is one that has not been actually communicated to the employee. However, even when an employer has communicated expectations, it may be appropriate to require the employee to provide a statement addressing the circumstances related to the alleged violation before determining whether termination or other disciplinary action is warranted. If an employer considers information obtained from sources other than the employee, it may be appropriate in some circumstances to notify the employee of the existence of such information before taking action to address the violation.
Evaluating Treatment of Similar Violations
Even when a workplace rule, order, or instruction is documented and actually communicated, employers also may wish to consider whether the rule, order, or instruction has been modified or eliminated over the course of time based upon actual practice. Educating managers, supervisors, and human resource professionals concerning the existence of policies, and the importance of uniform application of, and compliance with, a policy can minimize the likelihood of de facto modifications of rules, orders, and instructions. Additionally, periodic review of rules and policies may facilitate the process of eliminating rules that are no longer suitable due to changes in operations, and adding provisions that do align with present circumstances.
Ogletree Deakins will post additional tips for employers doing business in the U.S. Virgin Islands in 2020 on the firm’s U.S. Virgin Islands blog.