We represent Virginia employees in non-compete agreement issues. 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 from Virginia Non-Compete Lawyers 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.
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 employer 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. Additionally, a workplace investigation may involve a whistleblower complaint and must be addressed. 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. The do so to determine the validity of the complaint. If it is based on an employee’s alleged misconduct, the purpose is to 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, public sector or 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. Additionally, an investigation can result in various consequences, such as termination, suspension or loss of a security clearance, where applicable. The purpose in an employment discrimination investigation is to determine whether or not the allegations are credible.
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. Office of 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 only represents employees in investigations where the employer seeks to question them. There are numerous other law firms that represent employers in these matters. When being interviewed by an employer’s lawyer it is critical to have your own attorney.
Employee Duty 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 interview witnesses. Depending on the breadth of the investigation, it can involve interviews of numerous employees. Employees, depending on their particular employer, may have a duty to fully cooperate with an assigned investigator. They may also be able to decline to participate in the investigation unless they are ordered to participate. For example, some Virginia employees may decline to participate in an administrative investigation if it is voluntary. The investigator may also order a complete search of the employee’s computer and work emails.
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 and Representation
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 involved. It is important to determine the scope of the investigation and what legal issues may come into play for the employee. Keep in mind that an investigation being conducted by a private employer’s lawyer is likely looking for misconduct. The employer generally is not looking for reasons to exonerate the employee. 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.
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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.
Our wrongful termination lawyers for Virginia employees often meet with individuals that believe that they have been wrongfully terminated from their employer. 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.
Whistleblower Status
The 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. There has been a lot of new legislation in this area, expanding employees whistleblower rights in Virginia. In July, 2020 Virginia enacted its first dedicated whistleblower protection law. The whistleblower protection were enacted in the Virginia Whistleblower Protection Law.
Discrimination Protections
Additionally, a Virginia employee may have rights with respect to claims that an employee has been terminated for issues related to sex harassment, hostile work environment and other workplace discrimination. Many of these claims are protected by the Civil Rights Act through the EEOC and the Virginia Human Rights Act.
Virginia Contract Protections
Depending on whether an employee has signed an employment contract with their employer in Virginia, they may also have other options. It is common for some employees to have rights through the employment contract that they signed.
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.
Contact Us
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.
Thoughts on Wrongful Termination
We represent employees in Virginia and the greater Washington, D.C. area when they are wrongfully terminated from their employment. We represent individuals in wrongful termination cases when an employer terminates a person for some illegal or inappropriate reason. Many issues come into play when an employee is terminated. These types of employment issues are compounded by anxiety, fears, financial concerns and other strong emotions. It is very important for an employee to attempt to handle being terminated the right way because of issues that may arise later.
Five Tips in Wrongful Termination Cases
Here are five tips for Virginia employees to consider should they face termination.
1. Handle Termination Professionally
As difficult as this can be, an employee should handle their termination without drama. This is usually one of the most difficult things for an employee to do. However, if an individual handles this poorly, it can cause major issues for them later on. Individuals who cannot hold their emotions in check often end up much worse than those that quietly gather their belongings. In the worst case, if an individual makes a scene when they are fired, the employer may exaggerate the issue and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case later should the individual consider taking that step. Doing so also reduces the possibility that an employer will challenge a former employee’s attempt to obtain unemployment compensation or cause a problem if the individual later applies for a security clearance or another position.
2. Don’t Take Employer Materials or Property
Individuals should be very careful when leaving employment not to take proprietary employer materials, physical items, data or other employer documents without permission. We commonly see this issue arise when an individual is wrongly terminated, but the employer later claims as a defense that the employee “took” or “stole” materials or proprietary data from an employer. Most of these type of allegations relate to an attempt by the employee to take digital materials with them on their last day, but there are many different types of potential scenarios that can arise.
3. Try to Maintain a Reference for Future Employment
When an employee is fired, the usual next step is for them to find new employment. Even if a prior supervisor will not serve as a reference due to the termination, an individual should see if former supervisors (perhaps those no longer employed by the former employer) or others still employed at the employer will serve as a reference. Having a reference for the period of time worked at the former employment will vastly improve one’s chances of obtaining a new position. Even if an individual has been fired, having someone available who can speak to the former employee’s work/performance ability can go a long way towards mitigating the damage of the termination.
4. Don’t Sign an Agreement While Being Terminated
In many cases, employers will try to limit their liability for wrongful termination by presenting potential agreements to employees they are firing on the day of termination. Such agreements might offer a short amount of pay (1-2 weeks) in exchange for extinguishing all of the employee’s rights. Before signing such an agreement it is important to have an attorney review it. Many former employees come to us after they have signed such agreements which makes it very difficult to take any action on their behalf later.
5. Consult with an Attorney about the Termination
Not every firing involves a wrongful termination. However, if an employee believes that they were terminated wrongfully or illegally and are concerned with their rights they should seek legal advice and do so in a timely manner. Many employment rights are time sensitive so they should be evaluated immediately, if at all.
In the majority of employment termination cases that we see, individuals are able to move forward with their career after termination with good planning and preparation. The odds of doing so quickly increase when a termination is handled properly by the former employee.
Contact Us
We advise and defend Virginia employees against wrongful termination. If you need legal assistance in an employment matter in Virginia, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Our law firm represents Virginia state employees in their employment grievances filed against their individual state agencies. Virginia has adopted an employee grievance procedure for Virginia employees to resolve their employment issues. The Virginia Grievance Procedure has a number of steps in this process. The grievance process is administered by the Virginia Department of Human Resource Management, Division of Employment Dispute Resolution (EDR).
Starting the Grievance Process
The first step in the grievance procedure for a Virginia state employee is to prepare a written grievance over the employment problem at issue. The employee involved must usually file a written grievance within 30 days of the date that an employee knew or should have known about the issue being grieved. This is very important. If a grievance is not filed in a timely manner, the grievance will likely be dismissed. The grievance must be submitted on what is known as Grievance Form A. If there is not enough space on Grievance Form A, attachments may be used in filing the grievance. The first step of the grievance process is generally filed with the employee’s immediate supervisor.
The Grievance Procedure Steps
The grievance process, once initiated, generally goes through 3 separate steps in Virginia. First, there is a First Step grievance conducted by the employee’s immediate supervisor. If the matter is unresolved, it may proceed to a Second Resolution Step Meeting. As opposed to the First Step, a meeting is required during the Second Step. The Second Step is usually considered a fact finding session. If the Second Step does not resolve the grievance, the employee may then take their grievance to the Third Step. If the Third Step does not resolve the grievance and an employee wishes to take their grievance forward, he or she must then ask that their grievance certified for a hearing by the agency head.
In some cases, where a grievance involves a demotion, suspension without pay or any other action that results in an actual loss of wages, the employee may be able to elect the Expedited Process for grievance review. This Expedited Process generally starts at the Second Step procedures and is reduced to a single step. Dismissals due to formal discipline or unsatisfactory job performance usually will not go through the grievance steps, but rather proceed to the Grievance Hearing Process.
The Grievance Hearing Process
Grievances not resolved in the grievance process may or may not next move to the Grievance Hearing Process. Please note that not all grievances are eligible for a grievance hearing. Cases involving formal disciplinary (a written notice) actions and dismissals for unsatisfactory performance usually qualify for the hearing stage. Other types of grievances involving adverse employment actions may also qualify for a hearing. These can include: (1) unfair application of state/agency policies; (2) discrimination; (3) arbitrary or capricious performance evaluation; (4) retaliation for participation in the grievance process; and (5) other types of informal discipline (i.e. transfers, assignments, demotions and suspensions that are not accompanied by a formal notice by taken for disciplinary reasons). If a grievance is deemed by an agency head not
to be eligible for a hearing, the employee may appeal that decision to EDR.
The Grievance Hearing Process consists of the appointment of a Hearing Officer, a pre-hearing conference and the formal hearing, in addition to other procedures. During the hearing, documents will be introduced as exhibits and witnesses will be examined and cross-examined. If the grievance involves a disciplinary matter, then a state agency must prove their case by a preponderance (51%) of the evidence presented. Following the hearing, the Hearing Officer will provide a decision in writing. The Hearing Officer may uphold or deny the grievance.
Court Review
If the Hearing Officer rules against a party, that party can then appeal the adverse decision to the EDR or to the Virginia Department of Human Resources Management (DHRM), depending on the issue to be appealed before it is considered final. Once the hearing decision becomes final, a party can then appeal an adverse determination to Circuit Court and from there to the Court of Appeals. A petition can also be filed requiring implementation of the final hearing decision.
Conclusion
When a Virginia state employee files an employment grievance, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in in their state employment grievances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
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.
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.
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:
