Some states are moving to not only legalize marijuana but to also bar drug screening in employment for its use. For example, Nevada is one of these states. Beginning next year, most employers in the State of Nevada will not be able to turn down a job applicant solely for failing a marijuana drug test. This is the result of new state law, Nevada Assembly Bill 132, which will become effective on January 1, 2020. There is some discussion that a similar law will also be coming to Colorado and a number of other jurisdictions soon. Other jurisdictions such as New York City, Maine and the District of Columbia have also enacted similar laws.
Nevada’s New Marijuana Drug Testing Law
The new marijuana-related employment law will not bar employers from testing job applicants for marijuana usage, and it will not stop them from refusing to hire applicants that test positive for other drugs. There are some exceptions to the new law.
It does not apply to physicians, emergency medical technicians, firefighters or those that have job requirements involving driving and in positions which could adversely affect the safety of others. A copy of the new law can be found here. It is likely to be the first of many similar laws that are enacted in states that have legalized marijuana usage.
Virginia Still Criminalizes Marijuana Use – Change is Slow
While Nevada and other states have moved forward with decriminalizing marijuana usage and beginning to bar employment-related drug screening, Virginia still criminalizes marijuana usage. Furthermore, there is not yet a medical marijuana usage law in place.
Virginia employers remain able to terminate employees for testing positive for or using marijuana. Attorney General Mark Herring recently suggested changing these laws, which could be the start of a long process in Virginia. The first step in Virginia will be to decriminalize marijuana and then changes to employment law will ultimately follow.
Federal Marijuana Law – Change is Even Slower
Individuals should keep in mind that even as these states legalize certain drugs, these state laws have no effect on federal criminal drug laws barring usage. Furthermore, federal employees and security clearance applicants/holders are still barred and can be fired for marijuana usage.
I strongly believe that the federal government will likely change these laws in the next 5-10 years. For federal security clearance holders, marijuana usage will likely be reduced to an abuse standard, like with alcohol, but at present federal employees and security clearance holders can lose their security clearances with even one-time use in a state or jurisdiction that has legalized marijuana.
Conclusion
If you are in need of employment law representation in Virginia, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.
Several Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments in order for them to continue their employment. Our law firm represents private, federal, state, and county sector employees throughout the Commonwealth of Virginia in reasonable accommodation cases.
What are Reasonable Accommodations?
A reasonable accommodation is an employee’s request to change their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite having a disability or serious medical condition. Of note, the reasonable accommodation process applies to both employees and job applicants in all states, including the Commonwealth of Virginia.
Under federal law, the Americans with Disabilities Act (ADA), which applies to most employees, encompasses and outlines reasonable accommodations. Federal employees are also covered under the Rehabilitation Act, which incorporates similar protections as the ADA for these types of employees. According to these laws, employers are required to engage in the reasonable accommodation process for qualified employees unless it would create an undue hardship for them.
In Virginia, many employees are also covered under the Virginians with Disabilities Act, which applies to most employers. Under both federal and state laws, the ultimate goal of the reasonable accommodation process is to enable employees with disabilities the opportunity to enjoy an equal opportunity in employment. The Equal Employment Opportunity Commission (EEOC) provides guidelines for reasonable accommodation requests.
How to Request a Reasonable Accommodation
The most usual type of reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Typically, the employee will then ask for a reasonable accommodation by approaching their supervisor or HR department, depending on the employer, and asking for one. A request for reasonable accommodation can be either formal or informal. For instance, depending on the employer, some have created specific forms covering reasonable accommodation requests which must be completed; whereas, other employers simply allow informal verbal discussions between the employee and their immediate supervisor in an effort to resolve the issue.
Regardless of form, once requested, there is typically a discussion/meeting about the reasonable accommodation requested. The discussion between an employer and employee is referred to as the “interactive process,” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. This process does not mean that an employer has to grant every accommodation sought (or even the specific one requested by the employee); rather, the employer is only required to make a good faith effort to accommodate a disabled employee.
How to Find Examples of Reasonable Accommodations
There are far too many examples of reasonable accommodations to list here as they significantly vary based on an employee’s specific disability and their particular needs. However, the Job Accommodation Network (JAN) provides examples of reasonable accommodations regarding specific medical conditions. For example, JAN provides specific examples of potential accommodations for those facing back impairments which can be found here or for depression that can be found here. In all, JAN provides reasonable accommodation ideas for approximately 96 types of disabilities and medical conditions.
Conclusion
When an employee in the Commonwealth of Virginia needs to request a reasonable accommodation due to a medical condition, it is important to obtain legal advice and/or legal representation. Our law firm is ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. Should you need assistance in this process, please contact us by telephone at 703-668-0070 or through our contact page. Please also visit and like us on our Facebook and Twitter pages.
We often meet with individuals that believe that they have been wrongfully terminated from their employer in Virginia. When dealing with these types of employment issues, it is important to seek out the advice of a Virginia employment lawyer knowledgeable in these areas of law. This article discusses the rights and issues associated with wrongful termination for Virginia employees.
There is nothing quite the same as being called into one’s supervisor’s office, or to an employer’s HR office (almost always on a Friday) only to be informed that their employment has been terminated. In most cases, the employee is unaware of the pending termination and there is little advance notice. As a result, it is a fairly big shock to the person being terminated. Once notice is given, the person is often quickly escorted out of the office and is faced with confusion and a sense of loss. Many employees are left bewildered, wondering about their rights.
Wrongful Termination Law in Virginia
Employee terminations in Virginia are considered “at will”, which generally leaves it to the discretion of an employer whether to terminate an employee for pretty much any reason unless illegal. However, if the employer has violated a state or federal law in terminating the employee, the termination can be considered “wrongful” and there may be potential avenues to challenge the termination. These can include, but are not limited to:
- Whistleblowing Reprisal;
- Discrimination (age, race, sex, national origin, etc.);
- Sexual Harassment;
- Hostile Work Environment: and
- Violation of Employment Contract.
The case law with respect to whistleblowing is changing, and moving towards favoring an employee when the case merits. For many years, that was not the case in Virginia. In Bowman v. State Bank of Keysville, the Virginia Supreme Court first recognized an exception to the employment at-will doctrine based upon an employer’s violation of public policy in the termination of an employee. I expect this to continue to be an evolving doctrine where more exceptions are found.
Additionally, there has, at least for the last 50 years or so, claims that an employee has been terminated for issues related to sex harassment, hostile work environment and workplace discrimination.
Employee Should Determine their Legal Options
The first step that a Virginia employee should take if they believe that they have been wrongfully terminated is to make an appointment with a Virginia employment attorney to determine whether or not the action falls into the category of a “wrongful termination.” It is also important to consult with an attorney to see what steps may be taken to minimize the career damage that has just occurred and whether the action taken may be appealable.
It is usually the case that employees have more options following a termination than are apparent to them initially. The employer may have broken (or bent) federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution on behalf of the employee, with the employer, resolving the matter. A resolution generally occurs more often when the employee retains an attorney to contact the employer about the inappropriate or illegal nature of an employee’s termination. An attorney may also be able to tell an employee if their termination does not meet the criteria for wrongful termination and offer other strategies.
Conclusion
When facing wrongful termination issues in Virginia it is important to obtain the advice of and representation of a Virginia employment lawyer. Our law firm advises and represents individuals in wrongful termination matters in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please also visit and like us on our Facebook and Twitter pages.
Virginia Delegate Chris Hurst has introduced new legislation that he hopes will reduce incidents of workplace violence in the Commonwealth of Virginia. Specifically, Delegate Hurt has introduced legislation which would grant civil immunity to employers who share information about violent acts or threats made by current or former employees to potential employers or law enforcement.
The Proposed Legislation
The proposed law would grant civil immunity to employers who take such information into consideration when decide whether or not to hire an applicant. Under the legislation, an applicant for a position could not sue a current, former or prospective employer for sharing a candidate’s previous violent or threatening behavior into account in making a hiring decision.
Virginia House Bill 1457
Delegate Hurst’s House Bill (HB 1457) would allow hiring managers to openly discuss job candidates with their current, prospective or former employers. The text of the proposed law reads as follows:
- 8.01-226.10:1. Immunity of employers and potential employers; reports of violent behavior.
. . .
Any employer who, in good faith with reasonable cause, makes or causes to be made a voluntary report about violent or threatened violent behavior, by an employee or former employee to a potential employer of such employee, or to any law-enforcement officer or agency, shall be immune from civil liability for making such report, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer knew such report was false, or made such report with reckless disregard for whether such report was false or not.
Any potential employer who receives a report from an employer pursuant to subsection B of an employee or potential employee and takes reasonable action in good faith to respond to the violent or threatened violent behavior noted in such report shall be immune from civil liability for such action.
Any employer or potential employer who has a suit dismissed against him pursuant to the immunity provided by this section shall be awarded reasonable attorney fees and costs.
Potential Ramifications of New Law
It is understood that former employers would like the ability to discuss workplace incidents by former employees with other employers without being subject to potential liability. However, some problems with this potential law relate to how to do so in a way that protects an employee’s rights or does not place them on some type of permanent “do not hire” list. It is often the case that we see employees who have been wrongfully terminated, or accused of significant misconduct (even about alleged threats) which is not true. As a result, some supervisors or employers may feel free to exaggerate or retaliate against an individual against a former employee under this new law.
The new proposed legislation requires the employee or applicant to prove by clear and convincing evidence that any false comments were known to be false or made with reckless disregard. I think that a better route would be to lower this standard due to the number of times that we have seen former supervisors or employers make it difficult, purposefully, for others to get a job by making false statement about a former employee. Something should be done to help alleviate workplace violence, but the question is what. I am not sure that this bill goes far enough to ensure the protections of employees given that an employer could potentially pass on false information against a former employee which could cause them not to get hired and then face hurdles in bringing suit.
Conclusion
Our law firm represents and advises employees on employment-related matters in the District of Columbia and Virginia. If you need legal assistance, 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 at www.facebook.com/BerryBerryPllc.
Importance of Workplace Investigations
When serious allegations arise in the Virginia workplace, it is very important for an employer to retain a neutral and knowledgable investigator. This is especially so with respect to sexual harassment allegations, where such action can be required. Employers are faced with numerous legal risks if they do not conduct an investigation or otherwise fail to adequately investigate the behavior of their employees. For instance, in addition to sexual harassment and discrimination claims, other claims for negligent hiring and retention are being brought in larger numbers. As a result, employers conduct investigations far more regularly in Virginia than they have in the past.
Purpose of Workplace Investigations
The purpose of workplace investigations is for an employer to gather relevant evidence regarding the employee’s alleged misconduct and determine whether the misconduct warrants a disciplinary or an adverse action (e.g., termination or significant suspension) within the requirements established by law, policy, or regulation or with respect to the employer’s own liability.
Occasionally, these types of investigations can lead to a potential criminal investigation. Depending on whether the employer is federal, Virginia or involves a private employer, a supervisor or other designated investigator may be asked to conduct an investigation regarding the facts at issue. Employees may then be asked to provide verbal or written responses to questions regarding the alleged misconduct.
Hiring an Investigator
Once a workplace investigation is required, the next step is for the employer to identify who will conduct the investigation as the investigator. Government employers generally have their own investigators (e.g. Inspector General) and merely assign one or two investigators to a case to evaluate the conduct of employees. However, in the private sector (which covers the vast majority of employees) an investigator must be hired to conduct the investigation. This task is often completed by hiring a law firm and designating an attorney to conduct the administrative investigation. Many law firms conduct these types of investigations. Our firm typically represents employees that are under investigation and where the employer seeks to question them in conjunction with an investigation.
Employee Duties to Cooperate
During an investigation, an investigator (i.e. the law firm) will be hired to conduct a workplace investigation. They will review documents (e.g. complaints, emails, documents) related to the investigation and/or interview witnesses, depending on the breadth of the investigation. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator or can decline to participate in the investigation unless they are ordered to do so.
For example, federal employees may decline to participate in an administrative investigation if it is voluntary. Refusing to cooperate with an investigation or providing false statements or answers during an investigation can be grounds for disciplinary action. Providing false statements, if made to a federal or other law enforcement investigator, can also subject an employee to potential criminal penalties. For private sector employees in Virginia, not cooperating in an employment investigation can lead to disciplinary action or termination in some cases.
Employer Risks in Not Conducting Investigations
Internal or administrative investigations can also involve risks for the employer. If claims are made by employees, inadequate workplace investigations may raise questions regarding the accuracy of the results or whether the employee was treated fairly. In addition, the employer may not like what the investigation uncovers and will have an obligation to resolve or address issues, such as a systemic problem or legal impropriety. Additionally, as mentioned above, if an investigation is not undertaken an employer can be potentially liable for their negligence of complicity in not addressing the workplace issues.
Consider Legal Advice if Serious
Prior to providing information to an employer, depending on the severity of the issues under investigation, it can be important for an employee to discuss with an attorney the issues associated with the information being sought by the employer and the employee’s role in the matter being investigated. An attorney familiar with administrative or internal investigations can provide legal advice to assist an employee in preparation for responding to questions about his or her actions in the matter being investigated. In addition, an attorney, in many circumstances, can often accompany the employee during any investigative interviews.
Conclusion
We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise. This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.
For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.
Employee Polygraph Protection Act
On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination. The EPPA also prohibits employers from utilizing the results of any polygraph examination.
The EPPA does not necessarily apply to Virginia employees who work for Federal, State and local governments. Polygraph examinations can often be part of the legal processing of a federal security clearance. It also does not apply to private sector employees engaged in security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act here.
When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed. These include “including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.” See DOL Guidance.
The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability. Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).
Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA. In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.
Virginia State Polygraph Protections
In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations. Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing. Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.
The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states as follows:
Conclusion
The following is an article on leave laws and rules that cover Virginia employees. Leave issues generally tend to come up either during the course of an employee’s employment or immediately following the end of an individual’s employment. Leave laws and regulations also vary by the type of employer and jurisdiction of the employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave.
Virginia has not enacted laws regarding many areas of employee leave as of yet, but that may be changing as other states enact improvements. Virginia is a state where most forms of employee leave are not mandatory on employers, but can become so if policies and practices are adopted by employers. I also suspect that there will be additional changes in the future as Northern Virginia grows larger and adds more employers. Some jurisdictions, like the District of Columbia have moved towards expanded paid leave. Fortunately, for most Virginia employees, many forms of leave, while not mandatory are typically provided by employers in order for them to stay competitive in keeping key employees.
I will go through the major types of employee leave in Virginia below:
Vacation Leave / Annual Leave
Except for those situations involving medical issues, the most important form of leave involves annual or vacation leave. In Virginia, private sector employers are not required by law to provide employees with vacation / annual leave, either in a paid or unpaid status. This surprises many employees. Additionally, the rules regarding this type of leave are different for federal, state and county employees in Virginia.
For example, federal employees accrue a certain amount of annual or vacation leave each pay period and can then use this leave for vacation time or taking time off. When a federal employee leaves the federal government, they are then paid out for the remaining balance of annual leave that they have not used.
While providing or paying out accrued vacation or annual leave has not been mandated for private sector employers in this state, if it is pursuant to a consistent employer practice or policy, the employer in Virginia may be required to pay such leave out to departing employees.
Sick Leave
In the Commonwealth of Virginia, there is also no state requirement that employers provide employees with sick leave benefits. Virginia is different in this respect when compared to many other states. For example, 7 states (Arizona, Connecticut, California, Oregon, Massachusetts, Arizona and Washington) and the District of Columbia have enacted state laws to require some form of paid sick leave. It is likely that such laws will eventually make it to Virginia.
That said, if an employer decides to provide sick leave to employees in Virginia, it must follow their established policy. There are some other important considerations on sick leave. First, federal, state and county employees are generally given sick leave in increments. Additionally, pursuant to federal law, private sector employees of larger Virginia companies (more than 50 employees) are entitled to sick leave when given under the Family Medical Leave Act (FMLA). Under the FMLA, private sector employees in Virginia may take up to 12 weeks of leave in a 12-month period for a serious health condition, bonding with a new child, or qualifying exigencies.
This type of FMLA leave renews every 12 months as long as the employee continues to meet the eligibility requirements set out above. Employees may also take up to 26 weeks of leave in a single 12-month period to care for a family member who was injured on active military duty.
Administrative Leave
Administrative leave is a form of temporary leave from duties, with pay and employee benefits left intact. There is no entitlement to administrative leave for employees in Virginia, but it can and is often granted. Typically, this type of leave is granted for reasons related to misconduct, internal investigations, equal employment opportunity investigations or other miscellaneous issues that arise. Federal, state and county employees have their own unique policies for administrative leave, which vary. In large part, administrative leave is used to pay an employee when they are being kept out of the workplace during the course of a disciplinary investigation.
Holiday Leave in Virginia
Additionally, the Commonwealth of Virginia does not require private employers to provide employees with either paid or unpaid holiday leave. A Virginia employer does not have to pay an employee premium or other enhanced pays for working on a holiday. Again, different standards apply for federal, county and state employees, depending on position (e.g. firefighter), who may receive holiday pay for their work and/or different types of premium pay. The good news is that most private sector employers voluntarily observe a paid holiday schedule.
Leave Without Pay in Virginia
Leave without pay is another type of leave available in Virginia, but not mandated by state law. LWOP, as it is called, takes the form of reduced hours or in taking an unpaid day off. LWOP could be used for intermittent FMLA, personal, sick or vacation time off. The employee receiving LWOP will not be compensated for this unpaid form of leave.
Military Leave in Virginia
Military leave is available to most Virginia employees. Leave to participate in military service is not covered under Virginia law, but under federal law. The Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA requires that employers permit the return of an employee who is a uniformed service member to their position after they return from military service or training.
Voter Leave in Virginia
At present, an employer in Virginia is not required to give leave for an employee to vote. However, Virginia does require an employer to accommodate an employee who has been appointed as an election official in the Commonwealth of Virginia. Some federal and other public employees have policies of permitting leave for voting where necessary.
Jury Duty Leave In Virginia
An employer is not required to provide leave for jury duty in Virginia, but cannot discharge or retaliate against the employee if they have given reasonable notice to their employer of a jury obligation. Additionally, an employer may not charge a private sector employee vacation or annual leave for jury duty service. An employer that violates these provisions is guilty of a misdemeanor (VA Code. §18.2-465.1).
VA Code 18.2-464.1 provides, in part: “Any person who is summoned to serve on jury duty or any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in any court of law or equity when a case is to be heard or who, having appeared, is required in writing by the court to appear at any future hearing, shall neither be discharged from employment, nor have any adverse personnel action taken against him, nor shall he be required to use sick leave or vacation time, as a result of his absence from employment due to such jury duty or court appearance, upon giving reasonable notice to his employer of such court appearance or summons.”
Conclusion
If you need assistance with an employment issue or resolving a matter with an employer regarding leave issues, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook.
The following are 6 employment tips that can be helpful when an employee in Virginia is facing significant employment issues like termination, discrimination or retaliation.
Six Employment Tips to Consider
- Remain Calm.
When employment issues arise, it is extremely important that employees remain calm and keep their composure. As difficult as it may seem at the time, it is critical to stay calm while at work even when dealing with significant employment issues like termination, separation, or poor performance reviews. It is not helpful to argue with a supervisor over an employment issue that arises. Doing so can put an employee at risk for discipline, placement on leave, or even retaliation. In addition, employers could contact law enforcement or security if they feel the employee is irate and getting out of control.
- Do Not Use Social Media to Talk About Employment Issues.
We advise employees not to advertise their employment issues on social media (e.g., Facebook, Twitter, etc.). Almost inevitably, when employees discuss their employment issues on social media, one of their “friends” will pass it to someone who then passes it on to the supervisor who was a party to the problem compounding difficulties for the employee at work.
- Understand that Human Resources Supports Management.
A common misconception is that Human Resources is supposed to be a fair mediator of workplace disputes. This is not the case in 95 percent of employment issues. Human Resources is there to support management’s position in personnel matters. It is important to seek advice elsewhere before reaching out to Human Resources if an employee’s dispute involves a supervisor. HR generally tends to also pass on complaints by employees to supervisors and not treat them confidentially.
- Do Not Use Your Work Email Account or Computer for Discussing Employment Issues.
Employees should not use their employer’s email account to send personal or private information, especially related to their employment problems. We also recommend that employees not use work computers for drafting personal documents, storing pictures or other storage. Otherwise, the information employees store on their work computers can potentially be used against them. It is often very easy to use an employer’s email account or computer for private or workplace issues, but it can hurt an employee’s employment claims later or cause them to be terminated. The employer can potentially claim misuse of a work email account or computer. If an employer begins to suspect problems with an employee, the employer may take steps to review an employee’s email account or computer. Employers also usually archive emails for each employee.
- Don’t Talk With Co-Workers About Employment Problems.
It is also important to be very careful about discussing employment problems with co-workers in the office, even if they are your friends. It is quite common for an employee to tell a co-worker about his or her employment problems with a supervisor, then the co-worker will (even inadvertently) tell another supervisor or other co-workers where it eventually makes its way back to the supervisor involved. This can result in workplace retaliation.
- If Terminated or Separated, Get Legal Advice Before Signing an Agreement.
If an employee is terminated or separated and is presented with a severance, separation, or other settlement agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the agreement before signing it.
Conclusion
If you need assistance with employment law issues in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.
In Virginia, most employees are considered “at will,” which generally means they can be terminated or resign at any time. Even if they are “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 / her rights, including the right to file suit for any work-related issues. In Virginia, in the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will almost always provide the employee with a severance agreement. It is important to obtain legal advice before signing such an agreement.
This article discusses severance agreements in the Commonwealth of Virginia and some issues associated with them for employees.
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 retirement. They may be available in other types of situations as well. In order for a severance agreement to be valid, 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 financial sum 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.
Additionally, in Virginia and many other states, employers are generally required to provide an employee time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees 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), and at least a 7-day revocation period. Often, employers rush employees 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 necessarily be told this when the employer offers the severance agreement.
Considerations in Negotiating Severance Agreements
Some of the issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:
Financial terms and timing of severance payments
Tax consequences
Non-disparagement clauses
Re-employment/re-hiring possibilities for departing employee
Continuation of employment benefits (i.e. health)
Unemployment compensation issues
Which claims are waived
Confidentiality terms
Scope of non-competition after leaving employment
Preservation of trade secrets
References and points of contact for prospective employers
Recommendation letters
Consequences of violating the severance agreement
Severance cases must be dealt with quickly and appropriately, with the assistance of counsel. Each severance case is different and an employee may need legal representation in negotiating a severance agreement. Before an employee signs a severance agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the severance agreement.
Conclusion
If you need assistance with negotiating a severance agreement in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc or follow us on Twitter.
We often are asked by employees about their options for filing a discrimination or harassment complaint in Virginia. The answer is that it depends on many factors. For private, federal and other public sector employees in Virginia there are a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper place for filing the complaint depends on a number of factors, including what type of employee you are, the type of discrimination, where you live, and your type of employer. When considering filing this type of complaint it is generally important to consult an attorney to determine the best forum in which to file your complaint. Additionally, it is important to note that where there is more than one option for filing a discrimination or harassment complaint that it is important to get legal advice on the best option given the facts of a particular case.
Federal Employees in Virginia
For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint is to go through their federal agency’s EEO office within 45 days of the date of discrimination. This short deadline can usually be satisfied by contacting a federal EEO counselor contact directly. Federal agencies will provide the EEO contact information for federal EEO complaint counselors. The formal complaint process will follow later if the matter is not resolved. There are also other, less common, routes for filing a federal employee discrimination/harassment complaint, such as filing a grievance (where permitted) and/or a complaint though the Office of Special Counsel, but these are usually not effective when compared to a federal employee’s options at the EEOC.
Private Sector Employees in Virginia
For private sector employees (individuals employed by private companies) in Virginia, there are a number of potential options for filing a discrimination or 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 file a discrimination/harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15 (except for age discrimination claims, when coverage extends to businesses that employ between 6 to 20 employees). A private sector employee, if the matter involves a government contractor, can also file a complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is less commonly used. Lastly, some counties and municipalities in Virginia have enacted discrimination and harassment ordinances, like Fairfax County and Arlington County which also have procedures for filing complaints. 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.
State Employees in the Commonwealth of Virginia
State employees in Virginia have somewhat different discrimination/harassment complaint options. These include filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. These rules have been in flux given that they were provided by Executive Order, which have not been renewed in the past but are currently in effect.
County and Local Employees in Virginia
Finally, county employees have options for filing a discrimination complaints in Virginia as well. They may generally file discrimination/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 discrimination / 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 an employment discrimination or 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.
