Conducting business in the U.S. Virgin Islands poses unique challenges not often encountered in the states, but also unique opportunities. This 20-part series offers tips for doing business in the U.S. Virgin Islands, covering a broad array of topics affecting employers. Part 12 of this series addresses the workplace laws protecting victims of domestic violence.
Tip 12: Leave and Other Protections for Victims of Domestic Violence
As in other jurisdictions, incidents of domestic violence are reported to have increased during the period that "stay at home" directives were implemented to control the transmission of COVID-19. There are many circumstances in which human resources professionals, managers, and supervisors are guided by applicable federal or territorial discrimination laws to refrain from taking into account an employee's personal characteristics or circumstances in order to ensure that similarly situated employees receive equal treatment. However, U.S. Virgin Islands law protects employees who are victims of domestic violence. Employers doing business in the U.S. Virgin Islands may wish to familiarize themselves with these legal provisions to ensure that otherwise applicable employment policies are not enforced in ways that run afoul of the law.
Protections for Leave Related to Status as a Victim of Domestic Violence
Under the Virgin Islands Code, it is unlawful for an employer to "discharge, suspend or in any manner discriminate or retaliate against an employee who is a victim of domestic violence or a victim of sexual assault solely for taking time off from work to obtain or attempt to obtain any relief ... to help ensure the health, safety, or welfare of the victim or the victim's child." This protection extends to unscheduled absences, so long as the employee provides certification "within a reasonable time after the absence" demonstrating that the leave was due to domestic violence or sexual assault. The law does not define "reasonable time," but an employer with a "no call/no show" or similar attendance policy may wish to ensure that supervisors and managers are aware of the employer's obligation to make an exception for any absences that come within the statutory protections. The law also provides that an employer "may not discharge, suspend or in any manner discriminate or retaliate against an employee, including, an employee who is the victim of a crime or a witness to a crime, including domestic violence for taking time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding."
Further, if the employee's status as a victim of domestic violence comes to the employer's attention after the employer discharges the employee pursuant to an otherwise neutral workplace rule, the employer may want to be mindful that the law also provides a right to reinstatement and payment of lost wages and lost work benefits for a victim of domestic violence who has been discharged by his or her employer for taking time off for a purpose protected by law. In addition to providing a civil remedy, the law provides that it is a misdemeanor for an employer to "willfully refuse to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or a hearing authorized by law."
Protections When a Perpetrator of Domestic Violence Targets the Employee at Work
In addition to the law's provisions related to absences from work related to an employee's status as a victim of domestic violence, the law states that an employer "may not discharge, suspend or in any manner discipline an employee who is ... stalked at the job site by a person who perpetrated an act of domestic violence in which the employee was involved as a victim." If the act of stalking escalates into a confrontation between the employee and the perpetrator, the employer may wish to assess its normal workplace rules in light of the law's prohibition against discharging an employee as a result of a domestic dispute in which the employee was involved as a victim. The law requires an employer to reinstate the employment of "an employee who [was discharged] as a result of a domestic dispute where the employee was a victim ..., with back pay to the date of [discharge] amounting to twice the compensation the employee would have received had the employee not been [discharged]."
An employer with an employee who is confronting a domestic violence issue may wish to consider these provisions when determining how to address the employee's actions in response to conduct at the job site by a third party or other employee involving domestic violence. The employer may also want to note that it can lawfully require the employee to obtain a restraining order after the first incident. If the employer elects this route, it may wish to be mindful of the law's protections for an employee's time off for any court proceedings related to obtaining such an order.
October is National Domestic Violence Awareness Month, and accordingly, employers may wish to consider undertaking measures during the month to inform or remind supervisors, managers, and human resource professionals in their workforces about the legal protections for employees who are victims of domestic violence.
Originally published by Ogletree Deakins, October 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.