US VIRGIN ISLANDS LAW AND PRACTICE Contributed by: Marjorie Roberts, Sean Foster, Renée Marie André, Lisa Wisehart, David Bornn, Duncan J. J. Kessler and Jessica McKenney, Marjorie Rawls Roberts PC
maximum workweek of 40 hours for five consecutive days worked, and compensation at a rate of one and a half times the regular rate at which an employee is employed for hours worked in excess of 40. Due to the USVI’s economic dependency on tourism, there is an exception for an employer in either a tourist service or a restaurant industry where they may employ an employee for more than five consecutive days pro - vided that the employee is employed for not less than 40 hours a week and a workday may not exceed eight hours, unless the employee is compensated at a rate not less than one and a half times the regular rate. Under certain tax incentive programs in the USVI, for example, the EDC tax incentive program, EDC benefi - ciaries must hire a certain number of employees, most of whom are USVI residents, and must provide an array of benefits. These benefits include health insur - ance and retirement plans, vacation or paid time off, management training, and other benefits. Although the benefits provided to employees are comprehen - sive, so are the tax benefits offered, such as a 90% credit on income taxes for the benefiting business and The USVI Plant Closing Act requires an employer with fewer than 1,000 employees who is closing a facility or planning a relocation or any other action resulting in an employment loss to provide a 90-day advance written notification to the DOL and to the affected employees, and their union, as applicable. In the case of a mass layoff, at least 30 days’ advance notifica - tion must be given to employees and their union, as applicable, and at least 10 days’ advance notification to the DOL. For an employer with more than 1,000 employees, 180 days’ advance notification must be given. In case of a mass layoff that will not result in a plant closing, the employer shall give at least 30 days’ advance notification of the mass layoff to any affected employees and their respective labour unions, and at least 10 days’ advance notification to the DOL. An employer is not required to provide notice of a mass layoff, relocation, or employment loss if it results from a physical calamity, an act of terrorism or war. Sever - ance pay to the affected employees must equal one week’s pay for every year of service with the employer, in addition to any final wage payment owed to the dividends paid to resident owners. 10.3 Employment Protection
employee. Unions may negotiate for additional ben - efits for their membership. Employees affected by a plant closing must be given permanent preference in hiring and employment at other work locations of the employer. Additionally, the USVI has a Wrongful Discharge stat - ute under which, unless modified by a union contract, an employer may dismiss any employee only for nine enumerated reasons. Any employee discharged for reasons other than those listed in the statute is con - sidered to have been wrongfully discharged. The stat - ute does not prohibit an employer from terminating an employee due to a business closing or layoffs result - ing from economic hardship. Moreover, the DOL requires employers to list their open positions on a DOL website to advertise to USVI residents. Employers are also required to pay into the USVI workers’ compensation and unemploy - ment insurance programs, which may be in addition to paying into similar federal programs. 11. Intellectual Property and Data Protection 11.1 Intellectual Property Considerations for Approval of FDI The laws of the United States relating to patents, trademarks, and copyrights, and the enforcement of rights arising thereunder, have the same force and effect in the USVI as in the continental United States. The District Court of the Virgin Islands has the same jurisdiction in causes arising under such law as is exercised by United States district courts. 11.2 Intellectual Property Protections Patent Protection Patents are issued by the United States Patent and Trademark Office (“USPTO”). The three types of pat - ents are utility, design and plant patents. An inven - tor may apply for a provisional patent before a non- provisional patent, providing the means to establish an early effective filing date and permit the use of the term “patent pending” before filing a non-provisional patent application. The term of a provisional patent is 12 months. The term of a non-provisional, new pat -
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