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.
