All employees are entitled to due process by law.
When parties are in dispute over administrative decisions related to unemployment insurance, wrongful discharge, worker’s compensation, employment discrimination, and occupational safety and health, the Hearing and Appeals division adjudicates these cases.
HOW DECISIONS ARE APPEALED TO THE UNIT
Cases are referred to the Unit after an initial decision is rendered by either (1) an official from the Division of Workers’ Compensation; (2) an Adjudicator from the VIESA office; (3) the Director of the Labor Relations Division, or (4) the Commissioner through the Director of the Division of Occupational Safety and Health.
An aggrieved party must file a Workers’ Compensation appeal for a formal hearing within 20 working days of any action taken by the Division. A decision is published within 30 days after the completion of the formal hearing containing FINDINGS OF FACTS and CONCLUSIONS OF LAW and an accompanying ORDER. Any aggrieved party may appeal to the Commissioner in the form of a Request for Reconsideration. The Commissioner may remand the case back to the Unit for further proceedings or uphold the Order. If upheld the decision becomes a Final Order.
Wrongful Discharge complaints must be filed with the Division of Labor Relations within 30 days of the Complainant’s termination. The complaint is then transmitted to the Hearings and Appeals Unit and the matter is scheduled for mediation, a preliminary hearing, and if not resolved, a formal hearing.
Charges of Discrimination are filed with the Division of Labor Relations within 180 days of the alleged incident. The appeal for OSHA cases must be filed in the Unit within 20 days of a contest and 15 days under a discrimination charge. The adjudicator’s decision in an Unemployment Insurance appeal must be appealed within 10 days. The Hearings & Appeals Unit will schedule a formal hearing within ten (10) days and render a decision within 30 days of the appeal, or shortly thereafter.
HOW HEARINGS ARE SCHEDULED
A certified notice is sent to the parties advising them of their hearing date with an explanation of their rights. For Wrongful Discharge cases Mediations/Preliminary Hearings are scheduled within 10 days of service of the complaint. If the case is not resolved at this stage, the Unit must then schedule a Formal Hearing. Formal hearings are scheduled based on the chronological order of the date that the complaint was originally filed.
WHAT HAPPENS AT THE FORMAL HEARING
Each division’s appeal process governs the nature and scope of the formal hearing. All parties are given the opportunity to present evidence and to testify. Moreover, each party also has the right to be represented by his/her counsel through every step of the Hearings & Appeals process. All formal proceedings are tape-recorded and all parties are given an oath or affirmation before testifying at a formal hearing. After the case is called to order, an explanation of the proceeding, each party’s due process rights and the burden of proof is explained. In OSHA cases, or in special instances regulated by the Virgin Islands’ Courts, an Assistant Attorney General represents OSHA at all formal hearings. However, all formal hearings must adhere to and follow basic principles of the Rules of Civil Procedure and the basic tenets of the Federal Law of Evidence are recognized, where appropriate. If a party fails to appear at the hearing, the matter may be Dismissed with Prejudice or the party may be held in Default of their case. Unless the Virgin Islands Rules and Regulations state differently, the Final Order is the last administrative decision in the matter.
THE APPEALS PROCESS
If a party disagrees with the decision, he/she can: Request in writing-within a specific time period through each division’s rules & regulations-if applicable, that the Commissioner review any administrative decision rendered by the Unit.
On Reconsideration any aggrieved party may introduce evidence not known at the time that an action was taken by the Agency or adjudicator, or that was unavailable at an earlier hearing. After all the facts, evidence and rules of law have been reviewed, the matter may be reversed or upheld.
However, please check with each appropriate division to ascertain its rules, regulations and procedures.If after all the administrative appeals are exhausted and an aggrieved party remains dissatisfied with the outcome of the dispute, the matter can be reviewed by a court of competent jurisdiction. The court then requests a certified copy of the file and a transcript. The department is represented by the Attorney General’s office before the court system. If a party does not appeal the matter through the judicial system, the Unit carries out the enforcement of all orders including defaults, reinstatements, and back-pay issues, etc., where applicable.