Our wrongful termination lawyers for Virginia employees often meet with individuals that believe that they have been wrongfully terminated from their employer. When dealing with these types of employment issues, it is important to seek out the advice of a Virginia employment lawyer knowledgeable in these areas of law. This article discusses the rights and issues associated with wrongful termination for Virginia employees.
There is nothing quite the same as being called into one’s supervisor’s office, or to an employer’s HR office (almost always on a Friday) only to be informed that their employment has been terminated. In most cases, the employee is unaware of the pending termination and there is little advance notice. As a result, it is a fairly big shock to the person being terminated. Once notice is given, the person is often quickly escorted out of the office and is faced with confusion and a sense of loss. Many employees are left bewildered, wondering about their rights.
Wrongful Termination Law in Virginia
Employee terminations in Virginia are considered “at will”, which generally leaves it to the discretion of an employer whether to terminate an employee for pretty much any reason unless illegal. However, if the employer has violated a state or federal law in terminating the employee, the termination can be considered “wrongful” and there may be potential avenues to challenge the termination. These can include, but are not limited to:
- Whistleblowing Reprisal;
- Discrimination (age, race, sex, national origin, etc.);
- Sexual Harassment;
- Hostile Work Environment: and
- Violation of Employment Contract.
Whistleblower Status
The law with respect to whistleblowing is changing, and moving towards favoring an employee when the case merits. For many years, that was not the case in Virginia. In Bowman v. State Bank of Keysville, the Virginia Supreme Court first recognized an exception to the employment at-will doctrine based upon an employer’s violation of public policy in the termination of an employee. I expect this to continue to be an evolving doctrine where more exceptions are found. There has been a lot of new legislation in this area, expanding employees whistleblower rights in Virginia. In July, 2020 Virginia enacted its first dedicated whistleblower protection law. The whistleblower protection were enacted in the Virginia Whistleblower Protection Law.
Discrimination Protections
Additionally, a Virginia employee may have rights with respect to claims that an employee has been terminated for issues related to sex harassment, hostile work environment and other workplace discrimination. Many of these claims are protected by the Civil Rights Act through the EEOC and the Virginia Human Rights Act.
Virginia Contract Protections
Depending on whether an employee has signed an employment contract with their employer in Virginia, they may also have other options. It is common for some employees to have rights through the employment contract that they signed.
Employee Should Determine their Legal Options
The first step that a Virginia employee should take if they believe that they have been wrongfully terminated is to make an appointment with a Virginia employment attorney to determine whether or not the action falls into the category of a “wrongful termination.” It is also important to consult with an attorney to see what steps may be taken to minimize the career damage that has just occurred and whether the action taken may be appealable.
It is usually the case that employees have more options following a termination than are apparent to them initially. The employer may have broken (or bent) federal or Virginia laws with respect to the termination action. If so, then it may be possible to negotiate a resolution on behalf of the employee, with the employer, resolving the matter. A resolution generally occurs more often when the employee retains an attorney to contact the employer about the inappropriate or illegal nature of an employee’s termination. An attorney may also be able to tell an employee if their termination does not meet the criteria for wrongful termination and offer other strategies.
Contact Us
When facing wrongful termination issues in Virginia it is important to obtain the advice of and representation of a Virginia employment lawyer. Our law firm advises and represents individuals in wrongful termination matters in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.
This article contains wrongful termination tips for Virginia employees. Our law firm represents individuals in Virginia and the greater Washington, D.C. area when they are terminated from their employment illegally. This is often referred to as wrongful termination. Many issues come into play when an employee is terminated. These employment issues are compounded by anxiety, fears and other strong emotions. It is very important for an employee to attempt to handle being terminated the right way because of issues that arise later. Here are some tips for an employee to consider if they are fired by their employer:
1. Handle Termination Day Professionally: This is by far the most important tip. As difficult as this may be, an individual should handle their termination without drama. This is usually one of the most difficult things for individuals to do. However, if an individual handles this poorly, it can cause major issues for them later on. Individuals who cannot hold their emotions in check often end up much worse than those that quietly gather their belongings, hold their head high and leave on their termination date. In the worst case, if an individual makes a scene when they are fired, the employer may exaggerate the issue and call the police. Furthermore, leaving in a pleasant manner makes it much easier to settle a wrongful termination case later should the individual consider taking that step. Doing so also reduces the possibility that an employer will challenge a former employee’s attempt to obtain unemployment compensation or cause a problem if the individual later applies for a security clearance or another position.
2. Don’t Leave with Employer Materials: Individuals should be very careful when leaving employment not to take proprietary employer materials, physical items, or other employer documents without permission. We commonly see this issue arise when an individual is wrongly terminated, but the employer later claims as a defense that the employee “took” or “stole” materials or proprietary data from an employer. Most of these types of allegations relate to an attempt by the employee to take digital materials with them on their last day, but there are many different types of potential scenarios.
3. Seek a Reference: When an employee is fired, the usual next step is for them to find new employment. Even if a prior supervisor will not serve as a reference due to the termination, an individual should see if former supervisors (perhaps those no longer with the former employer) or others still employed at the employer will serve as a reference. Having a reference for the period of time worked at the former employment will vastly improve one’s chances of obtaining a new position. Even if an individual has been fired, having someone available who can speak to the former employee’s work/performance ability can go a far way to mitigate the damage of the termination.
4. Don’t Sign Agreements While Being Terminated: In many cases, employers will try to limit their liability for wrongful termination by presenting potential agreements to employees they are firing. Such agreements might offer a short amount of pay (1-2 weeks) in exchange for extinguishing all of the employee’s rights. Before signing such an agreement it is important to have an attorney review it. Many former employees come to us after they have signed such agreements which makes it very difficult to take any action on their behalf later.
5. Consult with an Attorney if Wrongful Termination Issues Arise: Not every firing involves wrongful termination. Many situations do not call for the involvement of lawyers. However, if an employee believes that they were terminated wrongfully or illegally and are concerned with their rights they should seek legal advice and do so in a timely manner. Many employment rights are time sensitive so they should be evaluated immediately, if at all.
In the vast majority of employment termination cases that we see, individuals are able to rebuild their careers with good planning and preparation. Generally, most individuals come back to us a year or so after a termination case and tell us that they are in a better place of employment and are happier. The odds of doing so quickly increase when a termination is handled properly by the former employee.
Conclusion
We represent Virginia employees in their legal defense against employment wrongful termination. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at Berry and Berry PLLC Facebook Page.
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.
