name tagAs a hotel operator, your top priority is likely on making a profit and ensuring that your guests are happy with their stay. Managers work behind the scenes, handling numerous day-to-day responsibilities for all parts of hotel operations, including sales, marketing, supervising personnel, security, maintenance and food and beverages.

Managing a hotel may also involve the potential for liability related to a wide variety of legal issues, such as negligence, tort claims, common law contract, and antitrust laws. For the most part, however, the basic legal duties for hotel operators most often leading to liability issues are those related to the manager’s role as a fiduciary to the owner and an innkeeper to the guests.

If you own or operate a hotel in the U.S. Virgin Islands, being aware of liability issues will help you protect you and your business.

Liability to hotel owners

Guidelines relating to a hotel manager’s potential liabilities to its owner did not emerge until the 1990s, when the case of Woolley v. Embassy Suites, Inc. changed the industry’s understanding of this specific legal relationship. The case established that the nature of a relationship between a hotel owner and manager is comparable to that of a principal and its agent. This means that a hotel manager owes the hotel owner fiduciary duties, including the duties of loyalty, good faith, fair dealing and full disclosure.

Although the owner does have the power to terminate the hotel manager’s employment for any reason, the manager can claim damages resulting from an early termination as long as they have not breached any fiduciary duties. If the manager has breached those duties, however, the owner can terminate the manager’s employment and follow up by seeking damages related to those breaches.

These types of lawsuits have become increasingly common since the Woolley case, resulting in managers taking greater notice of their fiduciary duties and potential liabilities.

Liability to guests

The duties of a hotel manager as an “innkeeper” have developed over many years. Under common law, an innkeeper’s duties include providing food, lodging and safe harbor for guests. In addition to common law requirements, many states and territories including the U.S. Virgin Islands have included innkeeper laws in their statues, requiring an innkeeper to provide lodging and food without discrimination(see 27 VIC 406). In addition, while an innkeeper is not directly responsible for the safety of guests, a hotel manager must still use “reasonable care” in promoting guest safety.

These principles have been brought up in numerous tort and negligence claims. The lawsuits, filed by guests, typically allege that injuries resulting from defects in the guest’s room or other unsafe hotel conditions violated the innkeeper’s duty to maintain the hotel premises in a reasonably safe condition. These lawsuits have highlighted the importance of properly maintaining hotel walkways, stairs, entrances, swimming pools and other potentially dangerous areas.

If you own or operate a hotel in the U.S. Virgin Islands and would like to learn more about your legal rights and responsibilities, speak with an experienced hospitality law attorney for further guidance.

BoltNagi is a widely respected and well-established business and hospitality law firm serving hotel owners and managers throughout the U.S. Virgin Islands.

officeIn a controversial move, U.S. Virgin Islands Governor John deJongh has vetoed a bill that would have widened the variety of businesses at Kingshill’s Research and Technology (RT) Park deemed eligible for considerable tax breaks.

The tax breaks are incentive benefits bestowed by the RT Park to its tenants at the park, preventing them from having to pay gross receipt taxes as well as significantly reducing their corporate income tax liability.

The RT Park was initiated in 2002 through territorial legislation, establishing self-sufficiency 10 years later. The intent of the Park was to provide tax incentive benefits to business tenants that qualified under the law’s definition of either “electronic commerce businesses” or “knowledge-based businesses.”

However, the Governor and opponents have doubts about the program’s true impact on the Territory’s economic development, concerned that the Territory is being deprived of millions of dollars in gross receipt tax revenues. When questions about the distribution of the RT Park’s tax incentive benefits were raised seriously last fall, U.S. Virgin Islands Attorney General Vincent Frazer began issuing legal opinions about which businesses actually qualified for the benefits.

Frazer found that cable television providers and Internet service providers, both businesses that were included in the tax break program, do not actually qualify as “knowledge-based” or “electronic commerce” organizations. The Attorney General also found that the RT Park was in the wrong for offering benefits to virtual tenants, or businesses not leasing space in the physical 64West Center building.

Among the businesses determined to wrongly benefit were of the three largest telecommunications companies in the U.S. Virgin Islands — Broadband VI, Choice Communications and Innovative Internet & Cable. None of them lease actual space from 64West Center, operating instead out of off-campus facilities.

However, these newly affected tenants have raised questions of their own. When they formed their relationship with the RT Park several years ago, there was no actual office space available for lease. In fact, 64West Center, the Park’s only physical office building, was not built until last year. These companies have expressed surprise that their benefits have been pulled due to circumstances beyond their control, claiming that they’ve done everything right and followed the rules exactly. However, they are still being punished by these recent decisions by the Attorney General and the Governor.

Governor deJongh says his main concern is maintaining the RT Park’s core values. The purpose of the tax break program was always to encourage economic development through selective incentives, and he says he fears that ignoring this mission in favor of what he terms “drafting errors” will cause much larger challenges in the years to come.

Over the past several years, the RT Park has been a positive economic development tool for various businesses in the U.S. Virgin Islands. It will be interesting to see if the organizations impacted by these recent decisions will be able to change the minds of public officials opposed to their inclusion in the program.

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

jokerAfter filing a lawsuit in April accusing her employers of withholding pay, Rosemarie Peltier, a nine-year employee of the U.S. Postal Service, has been charged with stealing more than $29,000 from the agency since she was forced to take her leave.

The former postal worker was actually placed on leave without pay in June 2002, a year and a half after she was involved in a fatal car accident on the way home from work and charged with negligent homicide. Four years later, however, she was acquitted of the charge on the grounds that the lighting the night of the accident had been poor and that the pedestrian she struck had been drinking and was crossing the street illegally.

Since then, Peltier has been attempting to be reimbursed for those four years of leave. However, a new issue has emerged after the U.S. Attorney’s Office charged her with embezzlement of government property, misappropriation of postal funds and false reports and entries of securities and monies — offenses that could earn her up to 30 years in prison. Prosecutors claim she deliberately failed to send off nearly $30,000 worth of money order payments her customers had given her.

Common forms of retaliation in the workplace

Issues of retaliation are relatively common in the workplace, on both sides of the employment scale. Managers, supervisors and even employment agencies may deny promotions, unduly fire or even harass employees who have earned their contempt by engaging in protected conduct like whistle-blowing or filing requests for accommodations that are reasonable, but perhaps inconvenient.

A so-called “hostile work environment” may also be created in a more subtle way, in the form of negative employee reviews, difficult working conditions and rude behavior or snubbing. Employees may claim that employers refused to provide job references for future jobs, even if they were earned.

However, vandalism and theft are the most common forms of retaliation from employees. A typical scenario involves workers who may feel that they have been unfairly treated or not paid enough, and as a result they may steal from or cause damage to a work environment. Theft is especially prevalent, as it is a convenient way to retaliate without becoming violent or confrontational.

If your company is dealing with employee retaliation issues, it’s important to consult a knowledgeable attorney in the U.S. Virgin Islands to address the problem before it becomes bigger and more costly.

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

women at workA proposed bill before the Legislature of the Virgin Islands has the potential to hurt employers and business owners throughout the Territory and inhibit expansion of small businesses.

Bill No. 30-0349, known as the Virgin Islands Healthy Workplace Act of 2014, aims to address issues like bullying, abuse and harassment at work — which the bill’s sponsor says promote stress, poor employee morale and ongoing health issues like hypertension, impaired immune systems and depression. If passed, it would provide more legal relief to workers who believe that they have been harmed financially, physically or emotionally due to a so-called “abusive” work environment.

At issue is the fact that the proposed legislation, which would add a new chapter to Title 24 of the Virgin Islands Code, more broadly defines “abuse” and “bullying”. This would make it much easier for employees to claim that their employers have engaged in these practices and file a lawsuit. However, it leaves what constitutes “abuse” open to the wide interpretation of judges and juries.

While the issues that the Healthy Workplace Act aims to address are serious, the bill would cause a number of challenges for employers throughout the U.S. Virgin Islands. For one, it would open them up to more lawsuits — many of them frivolous — thereby drastically increasing the time and money they must spend on legal matters. This could impact bottom lines and inhibit growth, making it more difficult for local businesses to make the investments they need to truly thrive and hire more workers.

For opponents of the bill, the problem isn’t with the concept of reducing bullying and abuse at work, but rather that there are already strict territorial and federal laws banning all forms of harassment, discrimination and other unfair practices. The U.S. Equal Employment Opportunity Commission (EEOC) maintains stringent regulations on issues such as the questions that may be asked during interviews and how employers treat their workers, and most businesses and organizations in the U.S. Virgin Islands have policies in their employee handbooks banning these types of activities.

In addition, similar laws passed in various U.S. states have failed to have much of an impact. Business leaders have pointed out that, while wasting taxpayer dollars, these programs have done little to address core problems associated with abuse and bullying in employment settings.

A great deal of focus has been placed on bullying in all parts of our society in recent years — from classrooms to work environments. Many businesses and organizations, including here in the U.S. Virgin Islands, have implemented comprehensive and effective internal anti-bullying measures to curb problematic behaviors and help ensure a safe and healthy workplace for all. However, it’s the opinion of many that this legislation may go too far in regulating the operations of small businesses that help grow our local economy.

BoltNagi is a well-respected and established business law firm serving organizations throughout the U.S. Virgin Islands. 

familyA domestic relations order is any order relating to child support, alimony or martial property rights that is issued in accordance with a state or territory’s domestic relations law. In the context of a divorce settlement, a qualified domestic relations order (QDRO) divides or changes the ownership of an employee’s retirement plan, giving each former spouse their portion of the pension plan or asset. QDROs may only apply to employee pension or benefit plans that are subject to the U.S. Employee Retirement Income Security Act (ERISA).

To distribute pension funds to another person (most often an ex-spouse), a QDRO may give ownership in the participant’s pension plan to an alternate payee, who is then able to collect all or a portion of the benefits. While alternate payees are usually former spouses, an alternate payee may also be the participant’s current spouse, child or other dependent. Once an alternate payee has been established, a QDRO can make it possible to divide community or marital property between the plan participant and the alternate payee, or to pay child support or alimony to the alternate payee.

To be considered a QDRO, the order must contain several important pieces of information. These include the name and address of both the retirement plan participant and any alternate payees, the percentage or dollar amount of the award to be distributed to the alternate payee, the name of the participant’s pension plan and the time period or number of payments the order will cover.

Conversely, a QDRO is not allowed to contain certain provisions. For example, the order cannot call for a pension plan to distribute benefits to an alternate payee if the benefits have been promised to a different payee under a previous QDRO, and the order cannot require a plan to provide for a future increase in benefits.

QDROs may be issued as independent orders, or they can be included in a court-approved property settlement or divorce decree. The timing of a QDRO’s issuance should not affect its validity, as long as it meets all other requirements under ERISA. A QDRO could also cover more than one retirement plan under the same or different employers, provided each plan and its benefit assignments are clearly explained within the order.

Qualified domestic relations orders can be very complicated, so it’s best to work with an experienced family law attorney in the U.S. Virgin Islands to make sure you have all of your legal requirements covered.

BoltNagi is a well-respected and established business law firm with family law services serving clients throughout the U.S. Virgin Islands. 

arrestIn some divorce cases, it may be necessary to get a temporary restraining order to protect you and your loved ones from the threat of domestic violence. This can be an effective means to discourage the person you’re filing against from contacting you in any way so that you can move ahead with your divorce. The order goes into effect immediately after a court approves it.

Obtaining a temporary restraining order in the U.S. Virgin Islands involves the following process:

1. File for the order

The first step is to file for the temporary restraining order in the judicial division where you currently reside, whether temporarily or permanently. If you have recently moved to escape abuse and would like your new address to remain confidential, you may choose to file in a different location, however.

2. Attend an initial hearing

The next step in this process is to go in front of a judge to request the temporary restraining order. During this hearing, you and your family law attorney will explain why you need the order and the immediate danger facing you and your loved ones. If it’s an emergency situation at night or on a weekend, when the court is not in session, you may also attempt to receive an order from your local police department.

3. Finalize the order

In many cases, your temporary restraining order may be granted ex parte, which means right away and without the knowledge of the other person. That individual will then be notified by law enforcement officers, and will be unable to contact you or come within a certain distance of you and your children. This will usually extend to your workplace or school.

4. Attend a second hearing

Another hearing will be scheduled, usually about two weeks after the first. It is mandatory for you to attend this hearing if you wish to make your temporary restraining order permanent. It’s also important to take this step and to be prepared to show evidence of domestic violence or abuse, including police reports, medical records, photographs or video.

A temporary restraining order is a great way to gain greater peace of mind and protect yourself and your family from domestic violence. Speak with a family law attorney to learn more about this process and your legal options.

BoltNagi is a widely respected and well-established family law firm serving individuals and families throughout the U.S. Virgin Islands. 

auditoriumWith marijuana legalization and decriminalization efforts sweeping the United States, most notably in Colorado and Washington, advocates here in the U.S. Virgin Islands are calling on our territory to take on similar reforms. At a recent gathering at the University of the Virgin Islands Great Hall, more than 200 advocates attended a forum and discussion on comprehensive marijuana reform.

Panel members, which included Sen. Terrence Nelson, business owners and well-known community leaders, spoke about the current state of marijuana prohibition both in the territory and across the U.S., including the rates of incarceration for individuals convicted of lower-level drug crimes like marijuana possession. They also discussed the possibility of legalizing hemp production, decriminalizing the possession of small amounts of the drug and approving it for both recreational and medicinal use. In fact, Sen. Nelson himself has taken action in the U.S. Virgin Islands legislature, proposing several bills with the past few years addressing these issues.

The forum has come on the heels of a rapidly growing trend across the United States of marijuana legalization, starting with Colorado and Washington voters approving legalization in the November 2012 election. Since then, the city of Portland, Maine and a number of communities in Michigan have followed suit. Marijuana legalization measures will also be on the ballots in several states this November.

According to a recent Gallup poll, more than 58 percent of Americans are in favor of marijuana legalization, and one UCLA professor believes that recreational use of the drug will be legal nationwide within the next five years.

Opposing views

While the recent panel event contained a great deal of enthusiasm from advocates, what it didn’t include was the other side of the issue. Those opposed to legalization say that the conversation needs to address potential consequences, including violent crimes that occur when one individual owes another money for drugs. Some also question whether making marijuana legal would encourage more people, including youth, to use the drug recreationally, which could eventually lead to abuse.

Regardless, it appears that current trends point toward marijuana legalization in more U.S. states in the years to come. The question remains —will the U.S. Virgin Islands?

BoltNagi is a well-established and widely respected law firm serving clients throughout the U.S. Virgin Islands.

crookA recent arrest made in the U.S. Virgin Islands has demonstrated the territory’s renewed dedication to enforcing tax evasion laws. In April, police arrested Johnathan Cohen, the sole owner of JKC Communications. Cohen was charged with failing to file and pay both individual and corporate income taxes for the past several years, according to the U.S. Virgin Islands Department of Justice and Internal Revenue Bureau (IRB).

JKC Communications is the parent company of several of the territory’s largest radio stations: Isle 95, Sunny 99.5 FM, AM 970-WSTX, Mongoose 104.9 FM and WSTX FM-100. Cohen’s arrest is one of many more to come as part of a greater effort to crack down on tax evasion, according to the U.S. Virgin Islands’ Tax Collection Task Force. Cohen allegedly failed to file taxes for a seven-year period between 2004 and 2010, during which time his corporations took in more than $10 million. In addition to failing to pay taxes owed to the territorial government, Cohen allegedly failed to file gross receipts tax returns during the same seven-year period.

The U.S. Virgin Islands has experienced a growing number of tax evasion issues since implementing economic development programs and tax breaks intended to lure new businesses to the area. While successful in bringing new companies to the territory, these incentives have also made it possible for more organizations to file false claims or avoid paying taxes altogether. In particular, the reluctance to file gross receipts taxes (a type of tax that is largely self-regulated) has been an area of concern for local and federal authorities.

A recent statement issued by Vincent Frazer, the U.S. Virgin Islands Attorney General and Co-Chair of the Tax Collection Task Force, explained that there are many individuals living in the territory who continue to fail to file or pay their taxes. It is the Task Force’s mission to bring those individuals to justice and collect any payment owed.

The investigation into Cohen’s case was carried out by the IRB under the leadership of Director Claudette Watson Anderson, with additional assistance from the U.S. Internal Revenue Service (IRS), which will continue to help with any upcoming tax evasion cases.

This news provides a good example of why it is important to work with an attorney to ensure you have all of your legal obligations covered, especially if you own or operate a business. Tax evasion is a serious crime, and it’s likely that the U.S. Virgin Islands will only ramp up its efforts to mitigate the issue in the months and years to come.

BoltNagi is a well-established and widely respected government relations law firm serving clients throughout the U.S. Virgin Islands.

clockOn April 3, the Third Circuit Court of Appeals set an important precedent regarding successor-employee liability for the U.S. Fair Standards Labor Act (FSLA). For the first time, the court determined that a successor-employer — one that has acquired an existing business and chooses to continue its operations in the same manner as the previous employer — may be held financially liable for its predecessor’s wage-and-hour violations.

This ruling is significant for businesses across countless different industries, as it potentially exposes them to additional claims under the FSLA and provides plaintiffs with additional ways to recover wage-and-hour claims. In this case, Thompson v. Real Estate Mortgage Network, the plaintiff sought to hold her previous employer and its predecessor company accountable for their alleged refusal to compensate her for overtime hours. This failure to pay is a violation of FSLA wage-and-hour laws in the state of New Jersey, where Thompson worked.

The FSLA is responsible for establishing overtime pay, minimum wage, youth employment standards and recordkeeping standards throughout the United States, including its territories. These standards apply to employers in the private sector as well as at the local, state and federal governmental levels. According to the law, any covered nonexempt employees are required to receive adequate overtime pay for any hours worked over 40 in a given workweek, at a rate of one and a half times the regular wage.

When evaluating the Thompson case, the court needed to decide whether the New Jersey state law test or the federal common law approach for successor-employer liability should apply. The federal common law approach, according to the court, presents a lower bar for relief than most state law philosophies. The court determined that the federal common law standard was the appropriate choice for governing Thompson’s claims, explaining that adopting a less stringent standard would make it more difficult for violators to escape liability. In addition, the court reasoned that the broader approach supports the federal statute’s mission of protecting workers’ rights and fostering labor peace.

This decision will likely have a significant impact on successor-employers in the U.S. Virgin Islands and across the United States. When acquiring a new business, employers should make an effort to understand and inquire about any existing state wage-and-hour violations to evaluate their risk of successor liability. It’s likely that this will become a standard practice when it comes to business valuation and transactions in the years to come.

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

acid rainUnder a legal agreement announced on April 23, the Virgin Islands Water and Power Authority (WAPA) will soon come into compliance with the federal Environmental Protection Agency’s air pollution control requirements. When announcing the agreement, the U.S. Justice Department and the EPA stated that it would go a long way toward reducing air pollution throughout the territory and beyond.

The consent decree specifically targets the U.S. Virgin Islands’ Estate Richmond generating facility, a fossil fuel power plant located on St. Croix. The EPA and the Department of Justice had previously discovered that the facility was exceeding its limits on the emission of nitrogen oxides and other particulate matter, which may cause serious health issues like asthma, heart disease and lung disease. The agreement is projected to reduce particulate matter emissions by about three tons a year and cut nitrogen oxide emissions by about 115 tons a year.

An EPA press release stated that the organization has been working with WAPA over the last several years to address the violations, which has resulted in the repair or replacement of some pollution controls and monitoring equipment. So far, WAPA has spent approximately $4 million on its compliance efforts, and will likely need to spend at least $2 million more per year to maintain compliance. In addition, the facility will be required to pay a $700,000 fine for its previous violations — $32,500 for each violation between March 15, 2004 and January 11, 2009, and $37,500 for each subsequent violation.

The EPA requires large facilities such as WAPA to install the latest in control technology for air pollution emissions. Upon inspecting WAPA’s facilities, the agency found that it had not adequately operated or maintained its pollution control system between October 2005 and December 2012. According to WAPA Director Hugo Hodge, some of the compliance problems occurred because WAPA had not properly budgeted for technicians, instead relying on contractors traveling from the mainland.

In the future, the facility will keep trained technicians on staff. In addition, WAPA will soon convert to natural gas, which will also help to reduce its overall emissions. Under the terms of the agreement, WAPA will be required to properly maintain and operate its pollution control system, develop and retain a spare parts inventory for its equipment, test and operate a robust emission monitoring system, perform stack tests and quality assurance checks and hire an independent party to train and audit staff for at least three years.

The EPA has been especially diligent about cracking down on polluters over the past several years, and WAPA is just one example of an organization the agency has targeted for compliance violations. As concerns about climate change and pollution grow worldwide, it’s likely that the EPA will continue to ramp up these efforts in the years to come.

BoltNagi is a respected and established government relations law firm serving clients throughout the U.S. Virgin Islands.