Creative Commons license courtesy of Gratisography.Most states and territories throughout the U.S. operate under the concept of employment at-will, meaning that an employer can terminate an employee for virtually any reason or for no reason at all, as long as the reason for termination is not related to federally protected categories such as race, sex, disability or age — or to the employee’s status under the Family and Medical Leave Act.

The U.S. Virgin Islands, however, has legislation on the books that specifies the conditions under which an employer may terminate certain workers. A termination for other reasons may be considered wrongful and could leave the employer open to a lawsuit.

The U.S. Virgin Islands “Wrongful Discharge Act” applies to employers with five or more workers, and only protects non-supervisory employees who have worked for more than six months at their job. Under the law, employees may be terminated for a number of very specific reasons. These include working for a competing business, poor behavior toward customers, substance abuse, failure to follow instructions, poor work habits, frequent absence, incompetence or inefficiency, dishonesty and conduct that alienates other employees. A business that ceases operations or is forced to cut back on its workforce due to economic hardship may also terminate workers.

Naturally, the precise language of the “Wrongful Discharge Act” may be open to interpretation, and employees who feel they have been wrongfully terminated could seek legal action. Because no company wants to be involved in a wrongful termination claim, it’s important that business owners protect themselves against such claims by preparing in advance for the possibility of litigation. Fortunately, this can be achieved by taking some routine actions during an employee’s time with the employer and prior to terminating the worker.

First, an employer should establish clear, fair and consistent standards for documenting an employee’s performance, including attendance, verbal warnings or discussions, incidents involving customers or other employees and anything else that may be relevant. The key is making sure that the standards for documentation are equally applied to all employees. Unequal documentation could result in the employer being accused of discriminatory practices.

Second, use the employee’s regular performance evaluation as an opportunity to ask open-ended questions to glean information that might indicate whether the worker believes they are being subjected to any type of discrimination or harassment in the workplace. Employers can use this information to aid in remedying negative workplace behaviors, and evidence of effort on the employer’s part can protect a company against claims of discrimination and harassment. At the same time, an absence of evidence of such problems can also protect the employer from wrongful termination claims.

Finally, it’s a good idea for an employer to seek legal counsel prior to terminating an employee, especially when termination may seem contentious. Having the appropriate documentation ready will allow the employer to proceed with confidence and hopefully avoid a difficult lawsuit.

BoltNagi is a widely respected and well-established labor and employment law firm serving businesses and organizations throughout the U.S. Virgin Islands.