With the change in control of the Virginia House of Delegates and State Senate in November of 2019, there is an opportunity to modernize the employment laws in the Commonwealth of Virginia. While there are a number of other suggestions out there already regarding the raising wages, right to work laws and other wage-related issues, I think that there are also some less contentious fixes that could offer employees improved protections. The following 3 suggestions would improve the workplace for Virginia employees.
Three suggestions for the Virginia Legislature to improve the workplace for Virginia employees:
- Enact a Private Sector Whistleblower Law: The Commonwealth of Virginia has been one of those states where whistleblower laws for the private sector are nearly non-existent. Currently, there is no general statute to protect employees employed in the private sector who are terminated because of their disclosures about illegal activities. There has been a common-law cause of action known as a Bowman claim but the courts have long avoided holding employers accountable without a statute in place. We are hopeful that the legislature is able to accomplish this. New York has a very good law that protects private-sector employees from whistleblower retaliation that should be considered. NY Consolidated Laws, Labor Law – LAB § 740.
- Include Sexual Orientation Discrimination in the Virginia Human Rights Act: The Virginia Human Rights Act does not currently protect employees from sexual orientation discrimination. It is time for the Commonwealth of Virginia to change this. Doing so would only require a minor addition to VA Code § 2.2-3900.
- Provide an Employee the Right to Dispute False Termination Allegations: While Virginia and other jurisdictions remain at-will states, there is no reason why an employee should not be permitted to rebut false allegations made against them in a termination matter which have been placed on file with the employer. Massachusetts has an excellent law (MGL Ch. 149, Section 52C) on this subject which provides an employee a complete copy of their personnel file and the opportunity to negotiate what their final employment record will reflect. Alternatively, the law provides the employee the opportunity to respond to negative termination allegations that would be kept in their employment file. Later, if a third party requests information about the person’s former employment, both the termination letter and the former employee’s response would be provided, not just the former employer’s side of the story. While amended recently, the Virginia Legislature would likely have to amend VA Code § 8.01-413.1 to accomplish this needed reform.
- Revamp the Administrative Grievance Process for State/Public Employees: The Administrative Grievance Process for Virginia public sector employees needs to be revamped. Presently, while there is a process that allows public employees to file a grievance and seek a hearing in termination cases, the truth is that the process is heavily slanted to the public employer. The hearing officers rule overwhelmingly on an employer’s behalf even when a termination is flawed. There is no reason why the hearing process cannot provide a level playing field for public sector employees. This would not require legislation, only changes and training at the hearing official level at the Virginia Office of Equal Employment and Dispute Resolution.
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