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.
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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.
We are often asked about whether or not a Virginia employer can require an applicant or employee to take a polygraph examination in regards to hiring or retention decisions. The answer, while generally no, has a number of implications for both Virginia employees and employers. It is important to obtain legal counsel on these issues prior to taking a polygraph examination when issues arise. This article discusses some of the issues that can arise in the context of attempting to require Virginia employees to take a polygraph examination related to their employment.
For Virginia employees, there are both federal and state restrictions on polygraph usage. It is important to know both areas of law.
Employee Polygraph Protection Act
On the federal level, Congress enacted the Employee Polygraph Protection Act, 29 U.S.C. §§ 2001- 2009 (EPPA of Polygraph Act). The EPPA provides for strict limits on the use of polygraphs in the workplace for employees and applicants. The EPPA bars most types of employers in Virginia (and other states) from requiring or even suggesting that a current employee or job applicant take a polygraph examination. The EPPA also prohibits employers from utilizing the results of any polygraph examination.
The EPPA does not necessarily apply to Virginia employees who work for Federal, State and local governments. Polygraph examinations can often be part of the legal processing of a federal security clearance. It also does not apply to private sector employees engaged in security-related activities (e.g. Security Guard, Armored car services). The Polygraph Act also permits polygraph testing, subject to restriction, of certain types of employees who are reasonably suspected of involvement in workplace theft or embezzlement that resulted in an economic loss to the employer. The Department of Labor has provided a good summary of the law under the EPPA act here.
When polygraph examinations are permitted for private sector employees in Virginia, there are numerous strict rules that most be followed. These include “including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.” See DOL Guidance.
The courts in Virginia, federal and state, have not had occasion to rule on these issues too often, but these cases likely get resolved early due to employer liability. Harmon v. CB Squared Servs., 624 F. Supp. 2d 459, 472-472) (E.D.Va., Jan. 29, 2009) (Former employee was asked to submit to polygraph examination by employer and was told that his examination revealed deception; employer not granted dismissal of case because facts show that the employer had violated EPPA by causing the employee to take a polygraph examination and by referring to the results of the examination at the meeting to discuss the test results).
Should an employer be found liable by a court under the EPPA for not following the law regarding polygraph use, the employer can be held liable for: (1) penalties up to $10,000; (2) lost wages, benefits and (3) attorney’s fees. There is also equitable relief where an individual can seek reinstatement or lost promotions as a result of the violations of the EPPA. In other words, employers need to be extremely careful when considering the use of polygraph examinations under the EPPA.
Virginia State Polygraph Protections
In the Commonwealth of Virginia, there are also additional protections for employees with regards to polygraph examinations. Pursuant to the Virginia Code, the only major restriction on employer polygraph testing in Virginia involves the subject matter of such testing. Virginia bars questions about an applicant’s prior sexual activities unless it is related to a conviction of such a criminal violation of the laws of Virginia.
The 1977 Virginia law, in Va. Code Ann. § 40.1-51.4:3, titled the Prohibition of use of certain questions on polygraph tests for employment, states as follows:
Conclusion
An interesting question that has arisen recently is whether Virginia employers can use non-compete agreements with independent contractors. The answer is not entirely clear. There are many potential pitfalls for both the independent contractors that sign such agreements and the employers that attempt to enforce them. An employer may discover that its fully executed non-compete agreement with an independent contractor is unenforceable, but also subject itself to significant liability for misclassifying an employee.
The Difficulties with Non-Compete Agreements for Independent Contractors
One of the main problems with requiring independent contractors to sign non-compete agreements is that independent contractors are different types of workers. An independent contractor is essentially its own business. Generally, an employer cannot compel an independent contractor, which is a separate business, to forfeit his or her business simply because it gave the independent contractor business. Independent contractors may appear similar to employees (and many employers cross the line in terms of who they think they can classify as an independent contractor), but there are different loyalties and duties. For the most part, the more that an individual becomes a part of an employer’s business or organization, through signing such non-compete agreements and assuming duties of loyalty and the like, the more likely that the individual can be considered an employee.
Suppose that an independent contractor is paid and taxed as an independent contractor, and then the employer has the independent contractor sign a non-compete agreement. The very existence of such an agreement likely initiated a shift of the contractor’s status from that of an independent contractor to a misclassified employee who owes a duty of loyalty to the employer. If the independent contractor has been misclassified by the employer, then the employer may risk having an unenforceable non-compete agreement, and also potentially subjects itself to serious tax, overtime, and government fine issues as a result of not paying the worker properly.
The legal issues and determinations associated with non-compete agreements for independent contractors in Virginia are in the very early stages and cannot be fully predicted. Given the large amount of government contractors in Northern Virginia alone, it appears that this issue will be fully litigated. Despite the relative uncertainty, an employer can easily run afoul of Department of Labor (DOL) and Internal Revenue Service (IRS) guidelines regarding misclassification, and end up owing significant sums to the government as well as the misclassified employee through enforcement efforts related to a non-compete agreement.
To date, there are a few interesting Virginia cases on the topic, including Reading & Language Learning Ctr. v. Sturgill, 94 Va. Cir. 94, Case No. CL-2015-10699 (Fairfax County Aug. 4, 2016) case. The Reading case involved an individual (Sturgill) who was training to be a speech therapist, but needed a clinical fellowship to obtain certification. Sturgill signed an agreement with Reading to work as an independent contractor for one year to obtain her license. In the agreement, Sturgill agreed “not to employ any contracted employee or contract with any current client of the other for a period of two years.” The language of the agreement was found to be confusing by the court.
Sturgill obtained her certification and left for full-time employment with a local charter school as a speech therapist. The local charter school had used Reading for some subcontracting work in the past. Reading then sued Sturgill in Fairfax County, claiming that she had breached her non-compete agreement by accepting employment at the charter school. Sturgill prevailed in her case on several grounds.
Interestingly, because Sturgill was still pending licensing, she was directly supervised by Reading personnel (since it had approved her schedule), and her supervisors had provided final approval on many issues associated with her work. As a result, the Reading court found that Sturgill was not an independent contractor and had been misclassified. The court determined that Sturgill was really an employee and, as a result, the non-compete agreement violated public policy. Specifically, the court found that because Sturgill was misclassified, Reading had not complied with Virginia and federal laws regarding employment taxation. In other words, the employer should probably never have brought suit as it subjected itself to other legal and tax issues. The case does not appear to have been appealed, so it is likely that the employer realized the mounting issues and decidedly walked away.
The Misclassified Employee Can Seek Damages
If an individual makes a claim that he or she was a misclassified employee, the individual can seek losses related to taxes and overtime. The DOL and other organizations can then seek fines and other penalties regarding the misclassification. The DOL has issued guidance on misclassification, at least as it relates to independent contractor entitlement to overtime. There are several different tests by DOL and the IRS on these issues (and they differ a bit). However, here is the test provided by the DOL in their Fair Labor Standards Act guidance:
“The Supreme Court has said that there is no definition that solves all problems relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA). The Court has also said that determination of the relation cannot be based on isolated factors or upon a single characteristic, but depends upon the circumstances of the whole activity. The goal of the analysis is to determine the underlying economic reality of the situation and whether the individual is economically dependent on the supposed employer. In general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who “follows the usual path of an employee” and is dependent on the business that he serves. The factors that the Supreme Court has considered significant, although no single one is regarded as controlling are:
(1) the extent to which the worker’s services are an integral part of the employer’s business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business’ overall process of production? Does the worker supervise any of the company’s employees?);
(2) the permanency of the relationship (example: How long has the worker worked for the same company?);
(3) the amount of the worker’s investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?);
(4) the nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?);
(5) the worker’s opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and
(6) the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).”
See DOL Guidance.
As indicated above, if the individual was a misclassified employee, then the employer might very well be liable for multiple tax issues and payments, in addition to other potential overtime payments and damages.
Conclusion
If you need assistance with non-compete or other employment law 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 our Facebook page.
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:
- When an employer violates a public policy enabling the exercise of an employee’s statutorily created right; or
- When the public policy violated by the employer was explicitly expressed in a statute and the employee falls under that statute; or
- 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 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.
Virginia employees are protected by Occupational Safety and Health laws from retaliation and discrimination if they report safety and health issues in the workplace which affect other employees. In Virginia, an employee shall not be discriminated against or terminated in retaliation for filing a safety or health complaint, testifying or exercising a right under Virginia Code Ann. § 40.1-51.2:1 concerning employee safety and health.
Examples of Retaliation Potentially Covered by Virginia Law
Here are some examples where the Virginia law against retaliation might apply. Keep in mind that this particular Virginia law is focused on dangers reported that could affect an employee or other employees in the workplace.
1. An employee reports to the fire department that there is a gas leak in the office. The fire department finds the cause of the leak and the employer is required to upgrade the gas lines. The manager gets upset at the cost to fix the leak and fires the employee.
2. An employee informs her manager that work vehicles are unsafe and not maintained properly. The manager, rather than fix the work vehicles, decides to fire the employee as a means to keep her from complaining or exposing the issues.
3. An employee reports a severe mold problem in the workplace. As a result, the employer is forced to spend a significant amount of money to fix the mold problem. The Employee is fired as a result of reporting the issue.
Filing a VOSH Complaint of Retaliation or Discrimination
A Virginia Occupational Safety and Health (VOSH) complaint of retaliation or discrimination must be filed within 60 days of the discriminatory action with the Virginia Department of Labor and Industry. If not, the complaint is likely to be dismissed for lack of jurisdiction. Following the filing of a complaint, a VOSH investigator will contact the complainant and/or his/her counsel and will initiate an investigation if all of the requirements for jurisdiction have been met. The investigator will follow the VOSH Whistleblower Investigation Manual in evaluating the case. An investigation may lead to a settlement for the employee or could lead to sustained findings by VOSH. There is also civil court review for an employee if a sustained violation by the investigator is not found.
Conclusion
If you believe that your Virginia employer has treated you differently for reporting a safety and health issue that affects the health of employees or need assistance with another employment law issue 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.
Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint. Individuals often also ask us to help them determine whether or not the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC) is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
The harassment victim can be either a woman or a man. Additionally, the harassment victim does not have to be of the opposite sex. That being said, sexual harassment does not always have to be of a sexual nature, however, and can include offensive remarks about a person’s gender/sex. It can constitute sexual harassment to harass an individual by making offensive comments about their gender. Additionally, when more minor comments or teasing are made on a continuing basis, a hostile work environment based on sexual harassment can arise. Additional guidance on sexual harassment was issued by the EEOC.
Harassment Complaints for Federal Employees in Virginia
For federal employees in Virginia, the usual method of filing an Equal Employment Opportunity (EEO) complaint alleging sexual harassment is to go through their federal agency’s EEO office within 45 days of the date of the harassment. This very short deadline can usually be satisfied by initiating contact with a federal EEO counselor contact directly. Federal agencies will provide the EEO contact information for federal EEO complaint counselors to federal employees. The formal complaint process involving the claims of sexual harassment will follow thereafter if the matter is not resolved. There are also other, less common, routes for filing a federal employee sexual harassment complaint, such as filing a grievance (where permitted, but not usually recommended) and/or a complaint though the Office of Special Counsel, but these are usually not effective when compared to a federal employee’s options file an EEO complaint.
Harassment Complaints for Private Sector Employees in Virginia
For those employed by private companies in Virginia, there are a number of potential options for filing a sexual harassment complaint depending on where they live and the size of their employer. A private sector employee employed by a company with 15 employees or more may file a complaint with the Equal Employment Opportunity Commission (EEOC), which is the most common route for those employed by private businesses. The deadline for doing so in Virginia is generally 180 days which can be extended to 300 days, because of a worksharing agreement between Virginia and the EEOC.
A private sector employee can also usually file a sexual harassment complaint with the Virginia Division of Human Rights (DHR) if their employer has 6 to 14 employees, but less than 15. Additionally, if the matter involves a government contractor, a private sector employee can also file a harassment complaint with the Office of Federal Contract Compliance Programs (OFCCP), but this complaint process is rarely used. Lastly, some counties and municipalities in Virginia have enacted harassment ordinances, like Fairfax County and Arlington County which also have procedures for filing complaints against employers. The deadlines for county filings can vary between 180 and 365 days, depending on county. In sum, it is important to figure out the correct forum and to file a claim well in advance of any deadlines.
Harassment Complaints for Employees of the Commonwealth of Virginia
Commonwealth employees in Virginia have somewhat different sexual harassment complaint options. These include the possibility of filing a complaint with the Virginia Department of Human Resource Management, Office of Equal Employment Opportunity Services (OEES) or the EEOC. The current Executive Order governing state employees was issued in 2014 and is here. Virginia state employees should consult with an attorney before deciding which forum for their sexual harassment complaint.
Harassment Complaints for County and Local Employees in Virginia
Finally, employees of Virginia’s various counties also have options for filing a sexual harassment complaint in Virginia as well. They may typically file harassment complaints with the EEOC, or if covered by their county or municipality, a local claim. By far, the majority of county employees take their cases to the EEOC and then to the court system, if their matter is not resolved.
Conclusion
It is very important to consult an attorney before choosing a forum in which to file a sexual harassment complaint because the correct place for filing complaints vary on the facts of the claim, location and size and nature of the employer. If you need assistance with filing a sexual harassment complaint, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
