Legal Memorandum: Wrongful Discharge Act and Executives in VI

Issue: Does the Wrongful Discharge Act apply to individuals who are employed in an executive capacity in the Virgin Islands?

Area of Law: Employee Law
Keywords: Wrongful discharge; Executive or professional capacity; Bona fide positions
Jurisdiction: Federal, Virgin Islands
Cited Cases: 300 F. Supp. 2d 780; 240 F. Supp. 2d 370; 733 F.2d 830; 705 F.2d 1461; 416 U.S. 267
Cited Statutes: WDA, 24 V.I.C. § 76; NLRA § 7; 29 U.S.C. § 157
Date: 09/01/2008

The Wrongful Discharge Act (WDA), 24 V.I.C. § 76 was revised in 2001 to exclude individuals employed in bona fide positions in an executive or professional capacity.  24 V.I.C. § 62.  Although there is little case law yet construing the phrase “a bonafide [sic] position in an executive or professional capacity” 24 V.I.C. § 62, there is substantial case law from numerous jurisdictions over many years of interpreting the National Labor Relations Act (NLRA) that can lend support here.

Under the NLRA, an employee is considered a managerial employee if he or she formulates and effectuates management policies by expressing and making operative the employer’s decisions.  NLRB v. Escambia River Elec. Co-op., Inc., 733 F.2d 830, 831 (11th Cir. 1984) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 288 (1974)).  This generally means that an employee is a manager or supervisor only if he or she makes discretionary decisions to control other employees or implement the employer’s policies.  Id. at 831 (quoting NLRB v. Yeshiva Univ., 444 U.S. 672, 683 (1980)).  This determination is made on the basis of the employee’s actual job duties, responsibilities, authority, and relationship to the company’s management.  Id. at 831-32 (quoting Bell, 416 U.S. at 290 n.19, and affirming the finding that the discharged employee was nonmanagerial).  Although the NLRA appears to define the term supervisor broadly, the courts of appeals have observed that “appearance is deceptive.”  NLRB v. Res-Care, Inc., 705 F.2d 1461, 1465 (7th […]

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