Workplace Investigations in Virginia

Our Virginia Employment Lawyers defend Virginia employees in employment investigations involving employee alleged misconduct. This article talks about the issues involved when an employer conducts an investigation in the workplace. Virginia employers (and employers in other states) usually conduct workplace investigations into employee complaints because they can face legal consequences (or more severe consequences) if they do not do so. As an example, if an individual alleges sex harassment / discrimination in the workplace and the claims are not investigated, an employer can be more readily held liable by employees affected by the conduct. The same type of investigation is necessary when dealing with claims of whistleblowing or other alleged inappropriate conduct at work.

The Steps in a Workplace Investigation

The beginning of the process starts with an employee complaint about misconduct in the workplace. This can happen where the employee reports it through a supervisor or other management personnel.  Once reported, the misconduct complaint can lead to an investigation. Almost always, in most employment investigations, the employer will hire an outside law firm (or occasionally use internal attorneys) to conduct an employment investigation and will act as the investigator. Once the investigator is appointed, they will start their investigation. Keep in mind that the employer’s goal in these investigations is to minimize liability for the employer. The complaining employee may also be represented by legal counsel.

While an investigator may find an individual employee at fault, the investigator usually wants to conclude and document that there was no fault on the part of an employer. The following steps usually take place in an employer investigation:

1. An employees files a workplace complaint;
2. An investigator is usually hired or appointed to investigate the complaint;
3. The investigator will review the complaint and plan for a thorough investigation;
4. The investigator will review any documentation or emails or other evidence available to prepare for interviews;
5. The investigator will interview the complainant or complainants about the conduct complained of;
6. The investigator will interview the employees with knowledge of the issues in the complaint;
7. The investigator interviews the accused employee or employees for their side of the story;
8. The investigator conducts follow-up interviews of any witnesses as needed and ties up lose ends;
9. The investigator issues a final report with recommendations to an employer; and
10. The employer will take action based on the findings in the report, usually referred to as a Report of Investigation or ROI.

Results of Workplace Investigation

Once the employer’s investigation is over, the results and actions taken by the employer can vary. A formal report is usually prepared, along with recommendations on actions to be potentially taken. The investigation can result in the termination or other discipline for an accused employee. The investigation can also vindicate the accused employee. In either event, an employer must be careful in avoiding retaliation against a complaining employee, even when their complaint is found to not be justified. Each investigation is different, and different employers vary in how they handle workplace investigations. The proper handling of an employment investigation can protect employees in the workplace from potential disciplinary action.

Conclusion

If an employee or employer needs assistance with an employment investigation or other issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Our law firm also authors the Virginia Employment Law Blog.

Thoughts on Virginia Non-Compete Agreements

Virginia non-compete agreements and clauses are important for employees to consider in joining or leaving an employer. Northern Virginia, given its proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large. At the same time, the laws regarding non-compete rules are evolving in Virginia and elsewhere.

What is a Non-Compete Agreement?

A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area. If you work in Virginia and have signed a non-compete agreement with your employer, former employees can face legal issues if they violate them. That is why it is important to get legal help in negotiating these agreements and attempting to resolve issues that later arise from alleged violations by an employer.

Types of Issues That Arise in Virginia Non-Compete Agreements

There are any number of issues that can arise because of a non-compete agreement or clause in Virginia. An employer may accuse a former employee of violating the prior agreement. In such cases, hiring a Virginia employment attorney is critical to resolve the issues before they get into court. Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.

Non-Compete Agreements Should be Narrow

Keeping in mind that these types of non-compete agreements must be drafted narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment. The bottom line is that employers should be reasonable in drafting non-compete agreements for employees.

Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts. It is important for an employee to understand their obligations as well. Since July 1, 2020, with a change in law, Virginia has prohibited employers from entering into, enforcing or threatening to enforce non-compete agreements with low wage employees. The definition of low-wage employee changes based on the Commonwealth’s average weekly wage. A good case to review by the Virginia Supreme Court on these issues can be found at this link. Additionally, the federal government may or may not be successful in attempting to further reduce the ability of some employers to use non-compete agreements for employees in the future. As mentioned above, this area of law is in the process of evolving.

Obtain Legal Advice About Non-Compete Agreements

When negotiating a non-compete agreement or clause or when questions arise as a result of a non-compete agreement it is very important to seek an experienced Virginia employment lawyer. This is best accomplished prior to signing an agreement or when potential violations arise.  Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at www.berrylegal.com for legal advice and consultation in such matters.

We are often asked about reasonable accommodations by employees in Virginia when they develop a medical condition that requires a change in
their duties or other adjustments. We advise private, federal, state and county sector employees in Virginia this regard. The reasonable accommodation process applies to both employees and job applicants in all states including the Commonwealth of Virginia.

What is a Reasonable Accommodation?

The usual first question that comes up is what is a reasonable accommodation?  A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite a disability. Most employees are covered under the Americans with Disabilities Act (ADA) which covers reasonable accommodations. Federal employees are covered under the Rehabilitation Act which is very similar to the ADA. According to these laws, employers are required to engage in the reasonable accommodation process to qualified employees unless it would create an undue hardship for them. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce reasonable accommodation matters.

In the Commonwealth of Virginia, employees are also covered under the Virginians with Disabilities Act which applies to all employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable a qualified employee with a disability the opportunity to enjoy an equal opportunity in employment.

How Does an Individual Request a Reasonable Accommodation?

A request for reasonable accommodation can be formal or informal. Some employers have created specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and their immediate supervisor. The most typical reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or Human Resources department, depending on the employer and asking for one. Once requested, there is usually a discussion about the reasonable accommodation requested.

The Interactive Process

The reasonable accommodation discussion between an employer and employee is often called the “interactive process” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. The interactive process does not mean that an employer has to grant every accommodation sought, or even the specific one requested. The employer is required to give a reasonable effort at resolving the reasonable accommodation at issue.

Examples of Reasonable Accommodations

The following are some examples of reasonable accommodation requests. There are far too many to list, but the following are examples.

Example A: An employee develops carpal tunnel syndrome and needs a new keyboard because their current keyboard is aggravating their condition. A request for a new keyboard is a request for a reasonable accommodation.

Example B: An employee is undergoing medical treatment in the morning for epilepsy. He informs his supervisor that he needs an adjustment in his starting time so that he can take his medication in the morning before starting work. This is a request for a reasonable accommodation.

Example C: An employee develops a heart condition and needs to take daily breaks at a certain time in order to take their medication. A request to take breaks in order to take medication is a reasonable accommodation.

Example D: An employee develops a disability that causes them to be unable to perform the duties of their position. An employee’s request for reassignment is a request for reasonable accommodation.

There are far too many examples of reasonable accommodations to list here, as they vary based on an employee’s specific medical condition and needs.  Additional examples of reasonable accommodations for specific conditions can be found here.

Conclusion

When a Virginia employee is in need of a reasonable accommodation, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Over the last several years in our employment law practice in Virginia, we have been advising employees on the proper use of social media in connection with their duties as an employee. Social media is one of the most unique and changing areas of employment law today. This article provides some basic tips for employees and a summary of their current rights in Virginia.

Social Media Tips – Advice for Virginia Employees

1. Avoid Adding Supervisors: Avoid (where possible) becoming friends or connected with supervisors (and sometimes co-workers). It has often been the case that we have had employees face discipline resulting from Tweets, Facebook or Instagram posts that even well-meaning individuals forward to the employer. For instance, we have seen posts ridiculing a supervisor eventually make it to the supervisor. It tends to create an atmosphere ripe for retaliation and discipline.
2. Avoid Workplace Criticism on Social Media: Avoid mentioning problems or other issues that arise at work. We have usually found that even a well-meaning friend can pass on information to a supervisor or company official that can lead to discipline or, at minimum, a less comfortable work environment.
3. Don’t Discuss Company Clients or Projects on Social Media: Avoid mentioning clients or other work specific information from your employer in your social media posts. Sometimes these clients get word of the post, see it online, or it makes the news. As a result, the employer often then takes disciplinary action against the employee.
4. Avoid Social Media Usage During Work Hours: While this may or may not be feasible for everyone, it is a good idea to avoid social media posting while at work. We have seen employees written up for social media posting during work hours or when using employer computers. In some cases, employers have argued, where social media posts include the time and date posted, that they have not been working their duties while getting paid. It is important to consider when and where you post on social media if it occurs during work hours.
5. Avoid Major Political Debates: While everyone has the right to an opinion, it is best for employees not to engage in political debates in social media where others connected to your employer can see them. Politics is deeply personal these days and has the tendency to draw retaliation in the workplace in some instances.
6. Don’t Overshare Private Information: It is not uncommon for individuals to share a lot of personal information on social media. It is important to think ahead as to whether or not you want your employer knowing information about your personal life. We generally recommend that you keep an eye on the amount and type of personal information that you share on social media.

Virginia Employee Protections for Employees and Social Media

Some states have begun to legislate the first protections for social media accounts held by employees. This has been the case in the Commonwealth of Virginia. While the laws in Virginia doesn’t protect an employee from the content that they post online through social media, it offers some protection for employees from employers who demand that an employee share it with them. Specifically, the new law bars employers from demanding or requiring access to an employee’s social media information as part of their employment.

Virginia Code § 40.1-28.7:5 protects employees from employers in:

(1) requesting their sign on information to media accounts; and

(2) requiring an employee to add a company manager or representative as a friend or contact on the social media account.

Furthermore, the Virginia law bars retaliation from employers that seek such information and are turned down by the employee.  The Virginia law provides that:

“An employer shall not:

1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or

2. Fail or refuse to hire a prospective employee for exercising his rights under this section.”

It is likely that this is only the first step in legislative protections for this area given the significant of social media today.  It is pretty clear that more protections for employees are needed and will come into place as states such as Virginia tackle the issue of how social media affects the workplace. In general, it is better to be safe than sorry in what you post on social media if that information is going to be shared with your co-workers and supervisors.

Conclusion

Keep in mind that not all companies take offense to social media posting and can have lax policies. The best idea is to find out company policy from the employer as early as possible. When facing employment issues it can be important to have the assistance and advice of counsel. If you need assistance with an employment issue, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation.

This article discusses the Equal Employment Opportunity (EEO) mediation process for federal employees. Our law firm represents federal employees in discrimination, harassment, retaliation and sexual harassment cases before the Equal Employment Opportunity Commission (EEOC) and/or individual federal agency EEO offices. Many retaliation, discrimination or sexual harassment cases filed through the EEO process proceed to mediation, which is often a good idea.

This article discusses the EEO mediation process and the potential benefits associated with engaging in that process for both parties involved.

What is the EEO Mediation Process?

Mediation is a voluntary procedure where the parties attempt to avoid litigation and resolve a complaint early in the process. Once the EEO complaint process has started federal employees and agencies can attempt mediation first. If mediation is agreeable, then a mediator is assigned. The EEOC provides an excellent general summary of the general mediation process.

The mediator assigned to a case does not make a finding as to who is right or wrong and has no authority to impose a settlement on the employer and complainant. Instead, the EEO mediator attempts to assist the parties in exploring and resolving their differences and hopefully come to a settlement of the case. There is also no fee by from the federal agency for the mediator as it is a benefit provided by the federal government to resolve cases.

Who Attends the EEO Mediation Session?

Usually, once mediation is scheduled, both parties and their lawyers will attend, along with the mediator. The mediator can be someone employed by the agency or a third-party contractor. The background of a mediator varies significantly. It is very useful, however, to have an attorney for both parties to attempt to resolve the case at the earliest stage possible. Furthermore, once an agreement is reached you will need counsel to prepare a written agreement over the terms agreed to.

How Does EEO Mediation Work?

Usually, mediation will be held at a location located in a conference room at the federal agency. Sometimes mediation is conducted by Zoom or Microsoft Teams. The session will usually last from a few hours to a day. Once the mediation session begins, the process usually will proceed as follows:

1. The mediator provides a copy of the mediation agreement.  The mediation agreement will ensure that any discussions at mediation are held confidential; they can’t be used later in litigation if settlement does not work out.

2. The mediator will begin by explaining the mediation process to the parties. Mediators, depending on their experience, how many different ways of conducting a mediation.

3. The parties will each provide an opening statement about their position in the case. It is often helpful for the employee to explain how they suffered discrimination, sexual harassment, or retaliation. The Government will then provide their own statement in response.

4. The parties will then usually discuss the EEO complaint.  The mediator may attempt to steer the discussion into a dialogue to attempt to get the parties to begin a discussion.

5. The parties may then discuss resolving the complaint or the parties may be separated in separate rooms.  A mediator may go back and forth between the parties discussing proposals and responses from each side.

6. The most important part of the mediation process are the caucus sessions; that is where most agreements are found.

7. The mediator will attempt to bring the parties to terms agreeable to both sides, typically a compromise between what both sides want.  Sometimes this occurs, and sometimes this does not.

8. If settlement terms are agreed to, the next step will be to reduce the agreement to writing and have all parties execute the agreement.

Formal Written Settlement Agreement

Following a verbal agreement between the parties agreed to at mediation, a written settlement agreement is completed. Usually, where parties are represented by counsel, this will be drafted and reviewed by the attorneys.  The agreement will bind both parties to a resolution and the agreed-to terms of the settlement (e.g. reinstatement, benefits, severance, backpay, promotion, attorney fees). When a settlement agreement is signed, the EEO complaint will be then withdrawn as part of the agreement.

According to EEOC statistics, the settlement rate at mediation is approximately 72-75%. We consider it a victory if both parties can resolve a case and save the time and costs of further litigation through dispute resolution efforts.

When Mediation Doesn’t Work Out

If mediation doesn’t work out, then the parties can return to the normal complaint process without any loss of rights. An investigator will be assigned and conduct the investigation. It is generally a good idea to try to mediate an EEO complaint first before going through the investigative process, as many cases do settle.

If you are a federal employee in need of assistance with filing an EEO complaint or mediation, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

In Virginia, most employees are considered “at-will” which usually means they can be terminated at any time and for any reason, unless illegal. Even if an employee is considered “at will” when an employee’s employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his or her rights, including the right to file a lawsuit or other claim for any work-related issues. When dealing with severance agreements in Virginia, it is important to have a lawyer review them before they are signed. This article discusses the importance of hiring a severance agreement lawyer and how they can assist employees when they leave an employer.

Most Typical Ways in Which Severance Agreements Arise

In the Commonwealth of Virginia, in the absence of an employment contract, an employer typically has no obligation to provide an employee severance pay or make other agreements with the department employee. If severance pay is offered, an employer will almost always provide the employee with a severance agreement, along with a release to sign. It is important for an employee to obtain legal advice and an agreement review before signing such an agreement.

What is a Severance Agreement?

In Virginia, a severance agreement is a contract between an employee and an employer that specifies the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs and/or retirements. Severance agreements may be available in other types of situations as well. In order for a severance agreement to be upheld, it must usually provide something of value to the employee to which the employee is not already entitled. For example, in most cases, a certain amount of compensation or salary is provided to the departing employee by an employer in exchange for a waiver of rights, usually referred to as a general release, by the employee.

Other Severance-Related Laws

Additionally, in Virginia, along with many other states, employers are generally required to provide an employee necessary time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees that are over 40 years of age with a 21-day consideration period, or a 45-day consideration period in the case of a large reduction-in-force (RIF), along with a 7-day revocation period. It is too often the case that employers inform an employee of their pending termination and then push them to sign a severance agreement and do not adhere to the procedures for severance agreements. The terms of a severance agreement are generally negotiable between the employer and employee. However, an employee will not usually be told this when the employer offers the severance agreement. This is why it is very important for an employee to obtain legal advice before signing a severance agreement in Virginia.

Typical Issues and Terms in Negotiating Severance Agreements

Some of the more common issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:

(1) Financial terms and timing of severance payments; (2) Continuation of employment benefits (i.e. health or disability insurance); (3) Unemployment compensation challenges; (4) Non-disparagement clauses; (5) Re-employment/re-hiring possibilities for departing employee; (6) Defining the employee and employer claims which are waived; (7) Confidentiality terms and exceptions; (8) Scope of non-competition after leaving employment; (9) Preservation of trade secrets; (10) References and points of contact for prospective employers; (11) Reference Letters; and (12) Consequences of violating the severance agreement

Each severance agreement and termination are different and individually fact-based. Before an employee signs a severance agreement, he or she should consult with an experienced severance agreement lawyer to discuss the rights that he or she may be waiving and potential improvements to the terms of the severance agreement.

Reasons to Retain a Severance Lawyer

Given the above variables in severance agreements, it is crucial to have an employment lawyer review a proposed severance agreement. Besides understanding the terms like those discussed above, a severance agreement attorney can help with the following negotiable issues:

       a. Terms: It is important to know that when an individual is given a proposed severance agreement that they can actually negotiate over the terms. Often, when the individual is unrepresented management is unwilling to change the terms of the proposed agreement. However, when an attorney is involved the chances of having a meaningful negotiation and the employee receiving better terms goes up.
       b. Money Owed to Employee: If an employee is owed money by an employer (e.g. leave, expenses) the employer must usually pay it with or without a severance agreement. However, it is helpful to include terms in a severance agreement specifying when and how such payment will occur.
       c. Severance Payment Terms: This is usually one the more important items in negotiating severance. Having counsel argue for a longer period of severance pay can often be important to an agreement. Experienced severance lawyers have a good sense as to the best arguments to obtain the best potential severance package.
       d. Employee Benefits: Severance attorneys can also help clients negotiate over health insurance other employee benefits. This can be critical, especially where health issues are involved, children have insurance coverage, and must usually be negotiated.
       e. Non-Disparagement and Reference Terms: If a severance lawyer is representing an employee, they can be useful in addressing and resolving how the parties will refer to the dispute and termination (i.e., will it be changed to a resignation, will the individual receive a reference or reference letter, etc.). A severance attorney can also negotiate the terms of non-disparagement involving a former employer and co-workers. A severance lawyer can navigate and propose solutions to these types of issues in advance.
       f. Non-Compete Clauses: Included within many severance agreements are non-compete clauses that can be negotiated. Sometimes attorneys can get the employer to agree not to include one and other times an attorney can potentially get the terms favorably altered.
       g. Confidentiality Information Clauses: In most boilerplate severance agreements, there are strict confidentiality clauses. A severance attorney can assist an employee in ensuring that exceptions are made where appropriate.
       h. Proprietary Information: When an employee is represented by a severance attorney, they can negotiate over the issues involved. For instance, an employer will want to protect their confidential business information, but an employee may also have personal information that they wish to retain and can be part of the severance negotiations.
       i.  Release of Claims: An attorney can help to maximize the types of claims released in a severance agreement and claims that can be asserted against the employee. This can often be very important.

Conclusion

If you need assistance with negotiating a severance agreement in Virginia, please contact our law firm at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook. It is very important to have an employment attorney review all severance agreements. Given the legalese that is prevalent in these types of agreements, most employees are fully aware of what they are agreeing to or the ramifications of certain provisions. We review and advise on severance agreements in Virginia and the District of Columbia.