Social Media Tips for Virginia Employees

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 contains wrongful termination tips for Virginia employees. Our law firm represents individuals in Virginia and the greater Washington, D.C. area when they are terminated from their employment illegally. This is often referred to as wrongful termination. Many issues come into play when an employee is terminated. These employment issues are compounded by anxiety, fears and other strong emotions. It is very important for an employee to attempt to handle being terminated the right way because of issues that arise later.  Here are some tips for an employee to consider if they are fired by their employer:

1. Handle Termination Day Professionally: This is by far the most important tip. As difficult as this may be, an individual should handle their termination without drama. This is usually one of the most difficult things for individuals 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, hold their head high and leave on their termination date. 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 Leave with Employer Materials: Individuals should be very careful when leaving employment not to take proprietary employer materials, physical items, 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 types 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.

3. Seek a Reference: 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 with 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 far way to mitigate the damage of the termination.

4. Don’t Sign Agreements 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. 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 if Wrongful Termination Issues Arise: Not every firing involves wrongful termination. Many situations do not call for the involvement of lawyers. 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 vast majority of employment termination cases that we see, individuals are able to rebuild their careers with good planning and preparation. Generally, most individuals come back to us a year or so after a termination case and tell us that they are in a better place of employment and are happier. The odds of doing so quickly increase when a termination is handled properly by the former employee.

Conclusion

We represent Virginia employees in their legal defense against employment wrongful termination. 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 Berry and Berry PLLC Facebook Page.

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.

There are a number of states which serve as laboratories for new types of employment laws that eventually may make it to the Commonwealth of Virginia and other jurisdictions. As we go through 2018, there are a number of new employment laws and bills that have been proposed or enacted by different states to improve employment conditions for employees. It should be interesting to see which ones eventually get enacted by Virginia or other counties and municipalities. Many of these laws take a few years to develop and get introduced in some form in Virginia. This article discusses them.

The following is a sampling of 5 new types of state employment laws that are pending or have been enacted in recent months:

1. Parental Leave: The State of California has enacted a new law (SB 63) which requires businesses with at least 20 employees to provide 12 weeks of unpaid and job protected family leave for employees to bond with a new baby, an adoptee or for a foster care placement.  The law would also prohibit an employer from refusing to pay for regular health care costs during the period of family leave.

2. Employer and Salary Information: California has also enacted (AB 168), a new law which would prohibits an employer from seeking the salary history information of an applicant or relying upon the applicant’s salary history information as a factor in hiring or in setting an appropriate salary.  Connecticut has passed a similar law (PA 18-8)

3. Social Media Information Protection Law: Vermont has enacted a new social medial privacy law (21 V.S.A. § 4951) which prohibits employers from requesting or requiring an employee to turn over their social media account information or to allow employer access to their social media accounts. Virginia has been ahead of many states in these types of protections, enacting their own version of social media protection for employees (Virginia Code § 40.1-28.7:5). The new Vermont law has more enforcement mechanisms than the Virginia law should an employee be affected.

4. Ban the Box – Prior Criminal Conviction History: California has enacted a new law (AB 1008) which prohibits employers with more than 5 employees from asking applicants about criminal convictions on employment applications or at any time prior to receiving a conditional offer of employment. After an offer has been extended, the employer may deny employment based on prior convictions, but must provide the applicant due process before a final decision is made. The new law also prohibits employers from considering or disseminating information about prior arrests not leading to convictions when conducting background checks.  

5. Sexual Harassment/Domestic Violence Leave: California (AB-2366), New York and a number of other states have put forth bills that would give or enhance the ability of victims of domestic violence, sexual assault or stalking to use leave or receive accommodations from employers without being subject to retaliation.  

Conclusion

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. Please also visit and like or follow us on Facebook or Twitter.

It is very difficult for an employee to be called into a supervisor’s office or to the human resources office unexpectedly and be informed that his/her employment has been terminated. Even if somewhat expected, it is almost always a shock to the employee when it happens. Following the notice of termination, usually the employee is escorted out of their building. They are also usually faced with a sense of bewilderment and loss. They may not even have time to gather their belongings.

At-Will Employment in Virginia

It is important to know that terminations by private employers in Virginia are at will, which generally leaves discretion to employers in decisions to hire and fire employees. At-will employment basically means that a Virginia employer can let go of an employees at will, without reason or notice. As the Virginia Supreme Court has held, Virginia adheres to the employment at-will doctrine, which allows that “[a]n employee remains at liberty to leave his employment for any reason or for no reason,” and “[b]y the same token, the employer is free to terminate the employment relationship without the need to articulate a reason.” Francis v. NACCAS, 293 Va. 167, 171-172 (Va. 2017) (citing Johnston v. William E. Wood & Assocs., 292 Va. 222, 225-26, 787 S.E.2d 103, 105 (2016)).

Exceptions to At-Will Employment in Virginia

There are exceptions to the at-will employment doctrine in Virginia.

1. Employment Contracts

One example is where an employee has an employment contract with the employer that provides more rights than at-will employees. Employment contracts often provide restrictions on the ability of employers in firing an employee. The terms of each agreement will be unique and should be reviewed by a Virginia employment lawyer.

2. Illegal Discrimination by Employer

Another exception to the at-will doctrine involves a situation where an employer has committed discrimination or retaliation related to discrimination claims. These cases can be brought to the Equal Employment Opportunity Commission (EEOC) or through other government agencies under the Virginia Human Rights Act. There are distinctions as to where a discrimination complaint can be filed based on an individual’s employer so it is important to speak with counsel before filing a complaint.

3. Whistleblower Retaliations

Another exception to the at-will employment doctrine is where the employer terminates an employee in retaliation for whistleblowing. Such claims, mostly those involving whistleblower or other applicable claims have in the past been known in Virginia as Bowman claims, after the case of Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).

Bowman Claims, according to the February 2017 Francis case can be found in one of the following 3 situations:

1. When an employer violates a public policy enabling the exercise of an employee’s statutorily created right; or
2. When the public policy violated by the employer was explicitly expressed in a statute and the employee falls under that statute; or
3. When the termination is based on the employee’s refusal to engage in a criminal act.

If violations of law, rule and regulation arise in the context of termination, it is important for an employee to take account of their options.

a.  New Virginia Whistleblower Laws as of 2020

In addition to Bowman claims, Virginia enhanced whistleblower laws for employees in 2020. It is usually better for an employee to have a legal cause of action based on a Virginia statute than caselaw. In this case, Virginia expanded the Fraud and Abuse and Whistleblower Protection Act in July of 2020 to protect employees of private companies, in addition to Virginia state employees from retaliation.

The Virginia Whistleblower statute provides:

§ 40.1-27.3. Retaliatory action against employee prohibited
A. An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:

1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;

2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;

3. Refuses to engage in a criminal act that would subject the employee to criminal liability;

4. Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or

5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

As a result of this new law, Virginia employees have gained new rights, surpassing those in Bowman.

Post-Termination Options

Virginia employees often have more options following a termination action than is apparent to them on the day of termination. The employer may have broken federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution, such as through a separation or severance agreement, on behalf of the employee with the employer. It is often the case that an employer asks the employee, right after termination, to sign a settlement agreement.  If an employee does so, without legal advice, they may be signing away their rights to challenge the termination. Other options may be available.

Other potential resolutions in Virginia generally can occur when the employee retains a Virginia employment lawyer to contact the employer about the inappropriate nature of the employee’s termination in violation of applicable employment or other laws. Many of these types of employment terminations are then resolved through settlement.

Issues Following Termination

Following an employee’s termination, many Virginia employees ask our firm whether they should also apply for unemployment compensation. The answer as to whether an employee should apply for unemployment compensation depends on the factual circumstances of the termination. Even if an employer terminates an employee in Virginia for alleged misconduct, the employee may still be able to seek and obtain unemployment compensation.

In addition, in Virginia, for unemployment cases, the employer has the burden of proof if they want to argue that the employee was terminated for misconduct. The employer essentially has to prove that the employee violated a significant company rule (and it usually must be a clear rule). In addition, it is often the case that an employee, through wrongful discharge negotiations, may obtain a resolution where the employer agrees not to contest unemployment. Finally, an employee should keep in mind that if the employee is terminated for poor performance, as opposed to misconduct, unemployment compensation is typically granted. However, any separation or severance compensation received by the employee will typically delay receipt of unemployment compensation.

So, while a lot depends on unique factual circumstances in each case, and each case should be discussed with an attorney, it may very well be worth it to consider filing for unemployment compensation in Virginia even if the employer has alleged misconduct or egregious performance issues in the termination.

While our firm principally represents employees in wrongful termination proceedings (as opposed to representing employees in the actual unemployment compensation hearings), we often advise them on issues involving their unemployment compensation matters and factor these issues into separation or severance negotiations as they can relate to their wrongful termination cases and factor these issues into separation and severance agreement negotiations.

Conclusion

When facing wrongful termination issues in Virginia it can be helpful and important to obtain the advice from and representation of an attorney. Our law firm advises and represents individuals in wrongful termination matters, including separation and severance agreement matters, in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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.

An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.

Thoughts on Employee Use of Employer Computers

In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their own personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace which means that employers can attempt access in reviewing their own computers and networks.

Regarding this issue, one of the biggest concerns that we have run across in representing employees in wrongful termination cases in Virginia involves an employee’s use or alleged misuse of an employer’s email, computers, network or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is to conduct an examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Crime Act, VA. Code § 18.2-152.3 or misappropriation or theft of trade secrets.

The best way for an employee to avoid these types of issues from arising either during or after employment is to not use the employer’s computer or network for any personal business.  While it can be inconvenient to consult legal counsel over these types os issues with employers, it can also be very costly to get it wrong and pay the costs of legal defense when an employer wants to pursue a former employee in some way.

Email and Internet Monitoring of Employees

Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. This cannot be overemphasized. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed of a company’s decision to monitor email.

Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.

VA Code § 18.2-152.5 provides for privacy protections for all individuals for unauthorized access.  Specifically, the privacy provisions of the Virginia Code provide that:

A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to any other person. “Examination” under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.

Telephone and Voice Mail

Some employers also monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.

Security Camera Monitoring of Employees

With the widespread use and availability of small wireless cameras, a number of employers have attempted to monitor their employees using such technology. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but it is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.

Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.

Microchipping Employees as a Form of Monitoring

While definitely a potentially future issue, at least 1 employer recently was in the news for offering employees a microchip to facilitate employer tasks.  Three Square Market, a technology company in Wisconsin asked workers to consent to having a microchip, about the size of a grain of rice implanted between their thumb and forefinger.  Approximately 50 of the 80 company employees agreed to this procedure.  The microchip will allow employees to check into work, access computers, open doors and purchase company food and drink.

This is clearly a major issue coming down the road, but is likely to take a number of years to develop through litigation.  For instance, it could easily be the case where states vote to ban such a practice, in advance, or otherwise regulate it. For now, it is just something to keep in mind for the future.

Employee Monitoring Cases Nationally

While Virginia has not been subject to too many employment cases as of yet involving employee monitoring, the issue has reached a number of other states.  a U.S. District Court has held that employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), the court ruled that an employer could read personal e-mails even when it had told employees it would not.

The U.S. Supreme Court, in Quon v. City of Ontario, 130 S. Ct. 2619 (2010),  held that a police officer, through his department issued device had no expectation of privacy in his text messages, even though his commanding officer had promised him that his messages would not be monitored. In Quon, the Court held that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.

Conclusion

If you need assistance with Virginia employment law issues or issues involving the use of employee monitoring, 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.

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.