IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. THOMAS AND ST. JOHN



CARLENE WOODS,



Plaintiff S.C. No. 9/1986



VS.«



ACTION FOR DEBT



SOUTH AMERICAN TRADE,

Defendant



Seni Set nner evar Nani Nest Stagg



CHRISTIAN, ALPHONSO A., Senior Sitting Judge



MEMORANDUM OPIWION

APRIL 7, 1986



I. INTRODUCTION,



This matter came on for hearing on the 24th day of

February, 1986, before the Honorable Alphonso A. Christian,

Judge, presiding. Both parties appeared in person pro se.



At issue before the Court is whether plaintiff is entitled to

pay for the number of overtime hours she claimed she worked

during the time she was employed by the defendant. For the

reasons stated below, we hold that she is not so entitled and

dismiss her action.



If. PACTS



The plaintiff, a former employee of the defendant, filed

this action, alleging that defendant owes her the sum of |

$247.92 for unpaid overtime compensation. Plaintiff alleges

that this sum is derived from her employment with the defen-

dant from September 14, 1985, through November 14, 1985, the

complete period of her employment.



Plaintiff is a college graduate who holds a Bachelor



of Arts Degree. On or before September 14, 1985, she was

WOODS vs. SOUTH AMERICAN TRADE

MEMORANDUM OPINION - PAGE 2



hired by the owner of defendant to assist it at her place of

business. Plaintiff was the sole employee in the establish-

ment and, by agreement of the parties, was obligated to work

from 8:00 a.m. to 5:30 p.m. This agreement was subsequently

modified, on request of plaintiff, with respect to the length)

of the workday, to the effect that plaintiff would terminate

her workday at 5:00 p.m. instead of 5:30 p.m.



Plaintiff was paid a weekly salary of $250.00. During

the course of her employment she functioned autonomously,

that is, she kept her own records of the time she worked,

and she managed and ran the business establishment in the

absence of the owner, exercising her own discretion in the

course of her employment.



Sometime after the parties had agreed that the plain-

tiff may terminate her workday at 5:00 p.m., a backlog re-

sulted in the work to be done, and as a result, defendant

requested that plaintiff resume her previous hours of work,

from 8:00 a.m. to 5:30 p.m. Plaintiff refused to do so,

terminated her employment, and commenced this lawsuit.



Defendant's business consisted solely of the selling

at retail of gift items, e.¢., leather goods and costume

jewelry, locally, to residents and visitors to the island of

St. Thomas. We therefore find that defendant was not engaged

in commerce as defined by the Federal Fair Labor Standards



Act cited hereafter.

WOODS vs. SOUTH AMERICAN Ti.

MEMORANDUM OPINION —- PAGE 3



Ill. DLSCUSSION



The regulation of fair labor standards, including the

establishment of minimum wages, is governed by the Federal

"Fair Labor Standards Act of 1938" as amended, 29 U.S.C.

Sections 201 et seq., (hereafter "The Federal Act"). The

Federal Act would apply to the subject matter before us only

where "commerce" is taking place, and “commerce” is defined as-

trade, commerce, transportation, transmission or communica- |

tion among the several States or between any State and any

place outside thereof". Section 203(b}) id. Clearly, this

definition includes only interstate commerce and excludes

intrastate or intra~island commerce. However, there is also

the Virgin Islands counterpart to the Federal Act, also called

the Fair Labor Standards Act, 24 V.I.C., Sections 1 et seq.

(hereafter "The Local Act"), which establishes labor stan-

dards, including the prescribing of minimum wages and maximum

hours. This the Local Act does, both directly, Section 4 id.,

and through a Wage Board vested with broad powers, (hereafter

"The Board"), Sections 6 and 7 id.



The Local Act, Section 2(2), as does the Federal Act,

Section 213{a) (1), exempts from its application “an[y] indivi-

dual employed in a bonafide executive, administrative, or pro-

fessional capacity". The Local Act also provides that wherever

any law of the United States establishes a minimum wage higher

than that fixed by the Board, or a maximum of working hours

lower than the maximum established by the Board, Federal law



Shall prevail. 24 V.I.C. Section 18(b). Since we hold that



both Acts exclude plaintiff from relief, this provision is of

WOODS vs. SOUTH AMERICAN TRADE

MEMORANDUM OPINION - PAGE 4



no moment except as a basis to arrive at a correct definition

of the class of managerial employee to which the plaintiff be-

longs. | ,



We also observe that in the case of Rickoff v. Vitex



Corp. Manufacturing Co., Ltd., 4 V.I. 555, 230 F.Supp. 23



(D.C.V.I. 1964), a case in which an employee sued for unpaid

wages, unpaid overtime wages, and payment in lieu of vacation

time, the Court, although not making it clear whether commerce

as defined in the Federal Act or local commerce was involved, |

resorted to the Federal Act and the requlations promulgated

thereunder--29 U.S.C. Sections 206, 207; 29 U.S.C. Section 213;

and Title 29 Code of Federal Regulations 541.1--for aid in the

proper construction to be given the class of employees generi-~_

cally known as “managerial employees" as a whole and to the |

subdivision of that entire class referred to in both the

Federal and Local Acts as "executive"™.=



The Court is satisfied that it may draw sufficient



authority from the provisions of 24 V.I.C. Section 18(b) and

the Vitex Court to determine if plaintiff falls within one of |

the three classes (sic) denominated as managerial, and, if she

does, into which class she falls. _



“orn vitex;: plaintifé was held to fall within the cate-

gory of “executive employee" (Opinion at page 559) because (1)



of the pay he received, ultimately and at the time of the suit,



ithe Vitex Court ruled that the plaintiff in that action fell

within the class of employees defined in the Code of Federal

Regulations, 29 CFR 541.1, as “executive".

“WOODS vs. SOUTH AMERICAN TRADE

“MEMORANDUM OPINION - PAGE 5 | |



$250.00 a week; and 2) because of the nature and scope of his



authority and of the duties he performed. He was given complete



authority’ to take such steps, as he deemed necessary for the



€ repairing machinery and ‘equipment in the plant; to be

“assisted by individuals 1 hired “by himself; and to hire and fire

“employees. “the. Vitex Court also resorted to a short test laid

out in a proviso at the end of the passage defining executive



employee which, if met, the requirements to be classified mana-



gerial employee, and excluded, shall be deemed to have been



3



complied with.



While plaintiff in the instant action cannot fall

within the managerial class of employees defined by CFR as exe~_

cutive as per Section 541.1 thereof, we are satisfied,following

the pattern provided us in Vitex, that she falls within the |

managerial class defined in these regulations as “administra-

tive" as per Section 541.2 thereof, whether we apply the long

test (29 CFR 541.2, Sections (a) through {(e) (1), or the short

test appearing in the proviso at the end of Subsection (e)-2

thereof, infra.



29 CFR 541.2 defines “Adminis-

trative" as follows:



The term “employee employed

in a bona fide ***administrative***

capacity" in section 213 (a) (1)

of the Act shall mean any employee:

(a) Whose primary duty consists

of either:

(1} The performance of office

or nonmanual work directly related

to management policies or general

business operations of his employer

or his employer's customers, or

WOODS vs. SOUTH AMERICAN TRADE

MEMORANDUM OPINION - PAGE 6



{2) The performance of func~-

tions in the administration of a

school system, or educational esta-

blishment or institution, or of a

department or subdivision thereof,

in work directly related to the

academic instruction or training

carried on therein; and



(b) Who customarily and regu-

larly exercises discretion and in-

dependent judgment; and



(c) (1) Who regularly and direct-

ly assists a proprietor, or an

employee employed in a bona fide

executive or administrative capa~

city (as such terms are defined

in the regulations of this sub

part), or



(2) Who performs under only

general supervision work along

specialized or technical lines

requiring special training, ex-

perience, or knowledge, or



(3) Who executes under only

general supervision special assign-

ments and tasks; and

. (dq) Who does not devote more



than 20 percent, or, in the case



of an employee of a retail or

service establishment who does



“not devote as much as 40 percent

‘of his hours worked in the work-

week to activities which are not

directly and closely related to

the performance of the work des-

cribed in paragraphs {a) through

(c) of this section; and



(e) (1) Who is compensated for

his services on a salary or fee

basis at a rate of not less than

$155.00 per week ($130.00 per week,

if employed by other than the

Federal Government in Puerto Rico,

the Virgin Islands, or American

Samoa), exclusive of board, lodgq-

ing, or other facilities, or



(2) Who, in the case of academic

administrative personnel, is com-

pensated for services as required

by paragraph (e) (1) of this section,

or on a salary basis which is at

least equal to the entrance salary

for teachers in the school system,

educational establishment, or in-



stitution by which employed.

WOODS vs. SOUTH AMERICAN TRADE

MEMORANDUM OPINION - PAGE 7



We have determined that the existence of anyone of the

following subsection combinations would be sufficient to exclude

the employee from the benefits of either the Federal or the



Local Fair Labor Standards Act, to wit:



1. Subsections (a) (2); (b);

(c); (c) (3); (d); and

{e) (1).



2. Subsections (c) (2); (d);

and (e) (1).



3. Subsections (c) (2); (dd):

and (e) (1).



4. Subsections (c) (3); (d);

and (e) (1).



5. Subsections (e) (2) coupled

with the salary requirements

of (ej) (1).



The proviso which defines the short test reads:



Provided that an employee who

is compensated on a salary or

fee basis at a rate of not less

than $250.00 per week ($200.00

per week if employed by other

than the Federal Government in

Puerto Rico, the Virgin Islands,

or American Samoa), exclusive

of board, lodging, or other

facilities, and whose primary

duty consists of the perfor-

mance of work described in

paragraph (a) of this section,

which includes work requiring

the exercise of discretion and

independent judament, shall be

deemed to meet all the require-

ments of this section. [38



FR 11390, May 7, 1973, as amen-

ded at 40 FR 7092, Feb. 19,

1975].



From the facts of this case we are satistied, and we



find, that plaintiff's employment fell within the managerial

WOODS vs. SOUTH AMERICAN TRADE

MEMORANDUM OPINION - PAGE 8



class of work defined as “administrative", whether we apply

the facts of her employment to the long or short test. Her

work was nonmanual, directly related to management; she cus-

tomarily and regularly exercised discretion and independent

judgment, or had the authority to do so; she regularly and



' directly assisted the owner being employed in a bonafide ad-

ministrative capacity, as such term is defined by the applica-

ble regulations; she executed under only general supervision,

and from the evidence, most times under no supervision at all

special assignments and tasks; and in this retail firm she

devoted virtually all her time in managing the business in the

absence of the owner. The minimum wage payable to her as an

administrative employee under the law was $130.00 per week if

we use the long test, or $200.00 a week if we use the short

test set forth in the proviso. The fact that she was paid



as much as $250.00 per week is uncontroverted. Thus she was

paid on a level at least comparable to the class of employees

defined by the regulations and in an amount comparable to the



nature and amount of work assigned to her.



IV. CONCLUSION —



As a Acyear | college graduate, fresh out of school at

the college of the ‘Virgin Islands, with virtually no experience,

paid $250.00 a week for the work which was assigned to her, it

appears that plaintiff made a serious mistake in quitting her

job for the reason she gave. Nonetheless, that was her choice

to make, and the Court has to respect it. But on the facts of

the case, and the law applicable thereto, we hold that plain-



tiff does not fall within any of the classes of employees

OODS



SOUT



{ERICAN TRAD



ORA



OP



NION



AGE 9



either the Federal or Virgin Islands Fair Labor Standards Act



was enacted to protect from substandard wages or excessive



hours in industry existing and carried on in the United States



Virgin Islands.



For the foregoing reasons, the plaintiff's case will



be dismissed with prejudice.



ey



/



Reakeicas



os



ALPHONSO A. CHR



ISTIAN,



JUDGE.



Attest



Viola



ML



dministrator/Cler



of -the



ourt



By: x



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i i. Hk.



te



Deputy