It is very difficult for an employee to be called into a supervisor’s office or to the human resources office unexpectedly and be informed that his/her employment has been terminated. Even if somewhat expected, it is almost always a shock to the employee when it happens. Following the notice of termination, usually the employee is escorted out of their building. They are also usually faced with a sense of bewilderment and loss. They may not even have time to gather their belongings.
At-Will Employment in Virginia
It is important to know that terminations by private employers in Virginia are at will, which generally leaves discretion to employers in decisions to hire and fire employees. At-will employment basically means that a Virginia employer can let go of an employees at will, without reason or notice. As the Virginia Supreme Court has held, Virginia adheres to the employment at-will doctrine, which allows that “[a]n employee remains at liberty to leave his employment for any reason or for no reason,” and “[b]y the same token, the employer is free to terminate the employment relationship without the need to articulate a reason.” Francis v. NACCAS, 293 Va. 167, 171-172 (Va. 2017) (citing Johnston v. William E. Wood & Assocs., 292 Va. 222, 225-26, 787 S.E.2d 103, 105 (2016)).
Exceptions to At-Will Employment in Virginia
There are exceptions to the at-will employment doctrine in Virginia.
1. Employment Contracts
One example is where an employee has an employment contract with the employer that provides more rights than at-will employees. Employment contracts often provide restrictions on the ability of employers in firing an employee. The terms of each agreement will be unique and should be reviewed by a Virginia employment lawyer.
2. Illegal Discrimination by Employer
Another exception to the at-will doctrine involves a situation where an employer has committed discrimination or retaliation related to discrimination claims. These cases can be brought to the Equal Employment Opportunity Commission (EEOC) or through other government agencies under the Virginia Human Rights Act. There are distinctions as to where a discrimination complaint can be filed based on an individual’s employer so it is important to speak with counsel before filing a complaint.
3. Whistleblower Retaliations
Another exception to the at-will employment doctrine is where the employer terminates an employee in retaliation for whistleblowing. Such claims, mostly those involving whistleblower or other applicable claims have in the past been known in Virginia as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).
Bowman Claims, according to the February 2017 Francis case can be found in one of the following 3 situations:
- When an employer violates a public policy enabling the exercise of an employee’s statutorily created right; or
- When the public policy violated by the employer was explicitly expressed in a statute and the employee falls under that statute; or
- When the termination is based on the employee’s refusal to engage in a criminal act.
If violations of law, rule and regulation arise in the context of termination, it is important for an employee to take account of their options.
a. New Virginia Whistleblower Laws as of 2020
In addition to Bowman claims, Virginia enhanced whistleblower laws for employees in 2020. It is usually better for an employee to have a legal cause of action based on a Virginia statute than caselaw. In this case, Virginia expanded the Fraud and Abuse and Whistleblower Protection Act in July of 2020 to protect employees of private companies, in addition to Virginia state employees from retaliation.
The Virginia Whistleblower statute provides:
§ 40.1-27.3. Retaliatory action against employee prohibited
A. An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:
1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
3. Refuses to engage in a criminal act that would subject the employee to criminal liability;
4. Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.
As a result of this new law, Virginia employees have gained new rights, surpassing those in Bowman.
Post-Termination Options
Virginia employees often have more options following a termination action than is apparent to them on the day of termination. The employer may have broken federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution, such as through a separation or severance agreement, on behalf of the employee with the employer. It is often the case that an employer asks the employee, right after termination, to sign a settlement agreement. If an employee does so, without legal advice, they may be signing away their rights to challenge the termination. Other options may be available.
Other potential resolutions in Virginia generally can occur when the employee retains a Virginia employment lawyer to contact the employer about the inappropriate nature of the employee’s termination in violation of applicable employment or other laws. Many of these types of employment terminations are then resolved through settlement.
Issues Following Termination
Following an employee’s termination, many Virginia employees ask our firm whether they should also apply for unemployment compensation. The answer as to whether an employee should apply for unemployment compensation depends on the factual circumstances of the termination. Even if an employer terminates an employee in Virginia for alleged misconduct, the employee may still be able to seek and obtain unemployment compensation.
In addition, in Virginia, for unemployment cases, the employer has the burden of proof if they want to argue that the employee was terminated for misconduct. The employer essentially has to prove that the employee violated a significant company rule (and it usually must be a clear rule). In addition, it is often the case that an employee, through wrongful discharge negotiations, may obtain a resolution where the employer agrees not to contest unemployment. Finally, an employee should keep in mind that if the employee is terminated for poor performance, as opposed to misconduct, unemployment compensation is typically granted. However, any separation or severance compensation received by the employee will typically delay receipt of unemployment compensation.
So, while a lot depends on unique factual circumstances in each case, and each case should be discussed with an attorney, it may very well be worth it to consider filing for unemployment compensation in Virginia even if the employer has alleged misconduct or egregious performance issues in the termination.
While our firm principally represents employees in wrongful termination proceedings (as opposed to representing employees in the actual unemployment compensation hearings), we often advise them on issues involving their unemployment compensation matters and factor these issues into separation or severance negotiations as they can relate to their wrongful termination cases and factor these issues into separation and severance agreement negotiations.
Conclusion
When facing wrongful termination issues in Virginia it can be helpful and important to obtain the advice from and representation of an attorney. Our law firm advises and represents individuals in wrongful termination matters, including separation and severance agreement matters, in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint. Individuals often also ask us to help them determine whether or not the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC) is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
The harassment victim can be either a woman or a man. Additionally, the harassment victim does not have to be of the opposite sex. That being said, sexual harassment does not always have to be of a sexual nature, however, and can include offensive remarks about a person’s gender/sex. It can constitute sexual harassment to harass an individual by making offensive comments about their gender. Additionally, when more minor comments or teasing are made on a continuing basis, a hostile work environment based on sexual harassment can arise. Additional guidance on sexual harassment was issued by the EEOC.
Harassment Complaints for Federal Employees in Virginia
For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through their federal agency’s EEO office within 45 days of the date of the harassment. This very short deadline can usually be satisfied by initiating contact with a federal EEO counselor contact directly. Federal agencies will provide the EEO contact information for federal EEO complaint counselors to federal employees. The formal complaint process involving the claims of sexual harassment will follow thereafter if the matter is not resolved. There are also other, less common, routes for filing a federal employee sexual harassment complaint, such as filing a grievance (where permitted, but not usually recommended) and/or a complaint though the Office of Special Counsel, but these are usually not effective when compared to a federal employee’s options file an EEO complaint.
Harassment Complaints for Private Sector Employees in Virginia
For those employed by private companies in Virginia, there are a number of potential options for filing a sexual harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private businesses. The deadline for doing so in Virginia is generally 180 days which can be extended to 300 days, because of a worksharing agreement between Virginia and the EEOC.
A private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15. Additionally, if the matter involves a government contractor, a private sector employee can also file a harassment complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is rarely used. Lastly, some counties and municipalities in Virginia have enacted harassment ordinances, like Fairfax County and Arlington County which also have procedures for filing complaints against employers. The deadlines for county filings can vary between 180 and 365 days, depending on county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.
Harassment Complaints for Employees of the Commonwealth of Virginia
Commonwealth employees in Virginia have somewhat different sexual harassment complaint options. These include the possibility of filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. The current Executive Order governing state employees was issued in 2014 and is here. Virginia state employees should consult with an attorney before deciding which forum for their sexual harassment complaint.
Harassment Complaints for County and Local Employees in Virginia
Finally, employees of Virginia’s various counties also have options for filing a sexual harassment complaint in Virginia as well. They may typically file harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court system, if their matter is not resolved.
Conclusion
It is very important to consult an attorney before choosing a forum in which to file a sexual harassment complaint because the correct place for filing complaints vary on the facts of the claim, location and size and nature of the employer. If you need assistance with filing a sexual harassment complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
