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 in Wrongful Termination and Discrimination cases
- 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.
In Virginia, most employees are considered “at will,” which generally means they can be terminated or resign at any time. Even if they are “at will,” when an employee’s employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his / her rights, including the right to file suit for any work-related issues. In Virginia, in the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will almost always provide the employee with a severance agreement. It is important to obtain legal advice before signing such an agreement.
This article discusses severance agreements in the Commonwealth of Virginia and some issues associated with them for employees.
What is a Severance Agreement?
In Virginia, a severance agreement is a contract between an employee and an employer that specifies the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs and/or retirement. They may be available in other types of situations as well. In order for a severance agreement to be valid, it must usually provide something of value to the employee to which the employee is not already entitled. For example, in most cases, a certain financial sum is provided to the departing employee by an employer in exchange for a waiver of rights, usually referred to as a general release, by the employee.
Additionally, in Virginia and many other states, employers are generally required to provide an employee time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees over 40 years of age with a 21-day consideration period, or a 45-day consideration period in the case of a large reduction-in-force (RIF), and at least a 7-day revocation period. Often, employers rush employees to sign a severance agreement and do not adhere to the procedures for severance agreements. The terms of a severance agreement are generally negotiable between the employer and employee. However, an employee will not necessarily be told this when the employer offers the severance agreement.
Considerations in Negotiating Severance Agreements
Some of the issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:
Financial terms and timing of severance payments
Tax consequences
Non-disparagement clauses
Re-employment/re-hiring possibilities for departing employee
Continuation of employment benefits (i.e. health)
Unemployment compensation issues
Which claims are waived
Confidentiality terms
Scope of non-competition after leaving employment
Preservation of trade secrets
References and points of contact for prospective employers
Recommendation letters
Consequences of violating the severance agreement
Severance cases must be dealt with quickly and appropriately, with the assistance of counsel. Each severance case is different and an employee may need legal representation in negotiating a severance agreement. Before an employee signs a severance agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the severance agreement.
Conclusion
If you need assistance with negotiating a severance agreement in Virginia, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc or follow us on Twitter.
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.
Employees in Virginia are generally considered “at will,” which means they can resign
and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers, in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.
What are Severance Agreements?
A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled. Employers are generally required to provide an employee time to consider the Severance Agreement before signing.
An employee usually has a 21-day consideration period to accept and at least a 7-day revocation period to revoke an employer’s Severance Agreement if the employee is over 40 years of age. For a group or class of employees (i.e., two or more employees) age 40 or over, employers must provide a 45-day consideration period and at least a 7-day revocation period.
Commonly Considered Terms
Items and/or terms that the employer and employee may place in these agreements include:
• Financial terms, tax issues and timing of severance payments
• Continuation of employment benefits (i.e. health, etc.)
• Issues related to unemployment compensation
• References (positive, neutral)
• Claims to be waived (i.e. discrimination, etc.)
• Confidentiality
• Non-Disparagement
• Re-hiring potential
• Scope of possible non-competition
• Preservation of trade secrets
• Recommendation letters
• Consequences of violating the agreement
Severance Agreements will also usually include a general release or waiver that requires that the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits upon the effective date of a fully executed Severance Agreement.
Conclusion
Before an employee signs a Severance Agreement, he or she should consult with an attorney to discuss the rights that he or she may be waiving and the terms of the Severance Agreement. If you need assistance with a Severance Agreement or other employment matter, 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.
In our legal practice, many current and former employees in Virginia often ask us whether they have the right to obtain a copy of their personnel file or at least have the ability to request and review it. Each state has their own laws and regulations with respect to this issue for private sector employees. Furthermore, government employee (federal, state, county, municipal) requests are governed by different federal, state, county, or city laws and regulations.
Access to Employment Files Vary by State Law
Private sector employees (those employed by companies; the majority of employees) are generally not entitled to a copy of their personnel file in most jurisdictions. Virginia has not yet passed a law requiring private sector employers to provide copies of an employee’s personnel file upon request or in requiring employee access to review and inspect their files. Other states, such as California and Massachusetts, however, have passed laws giving private sector employees required access to their personnel files. The general national trend seems to be moving towards passing laws and regulations that require employers to provide current and former employees access to their personnel files.
Public, Union and Federal Employees Have Additional Rights to their Personnel Files
Private sector employees belonging to unions may have additional rights to review or obtain a copy of their personnel files, depending on collective bargaining agreements negotiated between their union and an employer. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5. In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through discovery procedures.
General Tips for Virginia Employees and Employers
If employees do not have a statutory or other right to obtain a copy of their personnel file, it is still possible for the employee to ask human resources for a copy of an employee’s file. Even though employers may not have a formal policy on personnel files, human resources will often grant an employee’s request to review his or her personnel file unless they have a reason not to do so.
We also advise Virginia employers to consider allowing employees, under certain conditions, with the ability to review their personnel file even if it is not required. This often has a positive effect on workplace morale and clearly helps to limit suspicion in the company workplace. Such a policy also provides the employer the ability to clearly document that an employee was put on notice where disciplinary or performance actions have been taken. In addition, an employer should certainly have a policy in place that is consistently applied to all employees.
Conclusion
Our firm represents Virginia employees regarding employment matters and requests for information from personnel files. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page can be found at Berry & Berry Facebook Page.
This article is an overview of the Fairfax County Office of Human Rights and Equity Programs, Human Rights Division (HRD) process. The purpose of the HRD is to examine and investigate complaints by employees who have claimed discrimination on the basis of race, color, sex, religion, national origin, marital status, age, familial status or disability involving employment, housing, public accommodations, private education, and credit. Pursuant to the Fairfax County Human Rights Ordinance located in Chapter 11 of the County Code, the HRD evaluates complaints by employees who believe they have been subjected to discrimination and harassment by an employer in Fairfax County.
Filing a Complaint with Fairfax HRD
Generally, an employee must file a complaint with the HRD in person or by telephone within 365 days of the alleged discrimination. Complaints can also generally be filed at the Equal Employment Opportunity Commission (EEOC). The HRD and EEOC often cooperate with each other and in some cases a discrimination complaint will be considered cross-filed with both agencies. Some of the reasons for filing a discrimination complaint include:
Denial of a promotion due to race, color, age, or disability;
Gender-based salary discrimination;
Termination due to pregnancy; or
Termination after contesting an act of discrimination.
Resolving Complaints at HRD through Mediation
The HRD provides alternative dispute resolution (ADR) methods such as mediation, settlement, or conciliation, which allow the employee and employer to avoid future litigation. There can be substantial benefits and cost savings to both an employee and employer in resolving a matter without litigation.
The HRD Investigation Process
The HRD takes a number of steps in order to investigate an employee’s complaint. These steps include the following:
(1) submitting document requests to an employer relating to the alleged discrimination;
conducting witness interviews regarding the alleged discrimination; and
(2)taking site visits to the employer regarding the alleged discrimination.
Following the investigation, HRD will determine whether there is probable cause to find discrimination. A finding of no probable cause can be appealed to the Fairfax County Human Rights Commission. The Commission can reverse the HRD determination, find probable cause, and grant a public hearing. If the Commission does not find probable cause, the employee can utilize the EEOC or court process to advance his or her dispute.
Public Hearing
If a public hearing is granted for an alleged case of discrimination, the case proceeds much like in civil court where information can be sought by the employee and witnesses can be examined. A pre-hearing is conducted to work out evidentiary and witness issues, after which a trial-type hearing is conducted. Following the public hearing, the Commission will determine whether a violation has occurred.
If the Commission finds a violation, it refers the matter to the Fairfax County Board of Supervisors for review and evaluation to determine whether the County Attorney should file a claim against an employer for violating the Fairfax County Ordinances on discrimination. If the claim is dismissed, employees can proceed with the court process.
Conclusion
We represent employees and employers in employment law matters before the Fairfax HRD. If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
In our legal practice we represent Fairfax County employees (police officers, teachers, administrators, etc) in defense of disciplinary actions. Disciplinary actions can range from verbal counseling to removal / termination from employment. This article covers the more common issues associated with serious proposed actions against Fairfax County employees. Such actions should be taken, according to Fairfax County regulations only “for good cause and after careful review of allegations with a goal, where appropriate, of correcting problem situations.” County of Fairfax, Virginia Personnel Regulations at 16-5.
Disciplinary Process Begins with Investigation
Typically, the first step in the disciplinary process for Fairfax county employees is the investigatory process. This usually occurs as a result of a complaint from a supervisor or member of the public. Sometimes the investigatory process can consist of a detailed investigation into allegations of misconduct by county investigators (in serious matters) or other times it can simply consist of a short investigation conducted by an employee’s supervisor (less serious matters). The investigation may or may not include an interview of the employee under investigation. If the investigation does not result in a finding of misconduct, the matter is resolved. If a finding of misconduct is found, Fairfax County may determine to move forward with discipline for the county employee.
Proposed Disciplinary Action
The first step for serious disciplinary cases follows the investigation and usually takes the form of a written disciplinary proposal, termed an “Advance Notice Letter.” Chapter 16 of the Fairfax County regulations provides the range of potential disciplinary actions for county employees and guidance on proposed disciplinary actions. The Advance Notice Letter can propose a serious suspension or removal / termination from county service. It will also specify sufficient detail about the factual basis for the proposed disciplinary action, a listing of any previous disciplinary offenses, along with noting the employee’s right to reply (usually within 5 business days of receipt of the letter).
Final Decisions
Following the response to the proposed disciplinary action, a decision will be issued by the deciding official. When the decision is issued the employee will usually be provided their rights for appealing any disciplinary actions taken. Such rights likely include the Fairfax County grievance process which is covered in Chapter 17 of the Fairfax County regulations. The grievance process has a number of timelines which are short and important to keep track of should an employee wish to appeal.
Conclusion
We represent Fairfax County employees in their legal defense against disciplinary actions. 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.
