Virginia Employees’ Protection from Retaliation for Safety and Health Complaints at Work

By John V. Berry, Esq., www.berrylegal.com

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.

Filing a Sexual Harassment Complaint in Virginia

By John V. Berry, Esq., www.berrylegal.com

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.” Continue reading

Where to File Discrimination and Harassment Complaints in Virginia

By John V. Berry, www.berrylegal.com

We often are asked by employees about their options for filing a discrimination or harassment complaint in Virginia. The answer is that it depends on many factors. For private, federal and other public sector employees in Virginia there are a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper place for filing the complaint depends on a number of factors, including what type of employee you are, the type of discrimination, where you live, and your type of employer. When considering filing this type of complaint it is generally important to consult an attorney to determine the best forum in which to file your complaint. Additionally, it is important to note that where there is more than one option for filing a discrimination or harassment complaint that it is important to get legal advice on the best option given the facts of a particular case.

Continue reading

Virginia Severance Agreements

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By Kimberly H. Berry, Esq., www.berrylegal.com

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.

White House Proposes Changes to Non-Compete Agreements to States (including Virginia)

By Kimberly Berry, Esq., www.berrylegal.com

The White House recently asked states to enact legislation banning non-compete agreements for low-wage workers in an effort to increase competition and improve the economy. In a White House report issued on October 25, 2016, it explained that these types of agreements often prevent out-of-work employees from finding new jobs in their career fields. The White House also stated that these non-compete agreements interfere with worker mobility.

A non-compete agreement typically bars an employee from working for a competitor or starting his or her own business once the employee leaves the employer. The White House report cited the fact that 20 percent of U.S. workers have signed non-compete agreements preventing them from working for competitors. The figure included an approximate 17 percent of employees who do not hold a college degree. Virginia is in the majority of states that current permits non-compete agreements to exist.  A minority of states have banned them as anti-competitive.

Proposed Changes to Non-Compete Agreements

The White House is requesting that states pass bans on non-compete agreements for workers who do not possess trade secrets. Additionally, the White House is asking that states require companies to be more transparent about contracts. The three principal recommendations in the White House report on state changes to non-compete agreements include:

1. Enact State Bans on Non-Compete Clauses for Certain Categories of Workers: (1) workers under a certain wage threshold; (2) workers in certain occupations involving public health and safety; (3) workers who are unlikely to possess trade secrets; or (4) those who may suffer undue adverse impacts from non-competes, such as workers laid off or terminated without cause.

2. Improvement in Transparency and Fairness: of non-compete agreements by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted (because an applicant who has accepted an offer and declined other positions may have less bargaining power); providing consideration over and above continued employment for workers who sign non-compete agreements; or encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work.

3. Provide Incentives to Employers: to write enforceable contracts, and encourage the elimination of unenforceable provisions by, for example, promoting the use of the “red pencil doctrine,” which renders contracts with unenforceable provisions void in their entirety. Virginia currently follows this approach.

These proposed changes are hopefully raising more awareness regarding the issue of arbitrary and meaningless overuse of certain non-compete agreements. Unfortunately, it is not uncommon to see lower wage-earning employees being forced to sign unnecessary and overly restrictive non-compete agreements. However, there have been some positive developments, and three states have already enacted changes to non-compete agreements, including California, Oklahoma, Illinois and North Dakota.

Virginia Non-Compete Agreements

In Virginia, it is likely that there will be discussions about further limiting the scope of non-compete agreements in the future given the overuse of such agreements.  The general history for non-compete agreements in Virginia has been that they were disfavored at law, but permitted under certain circumstances.  The problem that the legislature will have to eventually take on eventually is whether they should bar non-compete agreements for workers earning lower wages and those who do not truly have access to proprietary information.

Conclusion

Our firm represents Virginia employees regarding employment matters and non-compete agreements. 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.

Virginia Employee Access to Personnel Files

By John V. Berry, Esq., www.berrylegal.com

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.

5 Wrongful Termination Tips for Virginia Employees

By John V. Berry, Esq., www.berrylegal.com

We represent individuals in Virginia and the greater Washington, D.C. area when they are terminated from their employment. We represent individuals in wrongful termination cases when an employer terminates a person for some illegal or inappropriate reason. Many issues come into play when an employee is terminated. These types of employment issues are compounded by anxiety, fears, financial concerns and other strong emotions. It is very important for an employee to attempt to handle being terminated the right way because of issues that may arise later.

Here are 5 tips for Virginia employees to consider should they face termination:

1. Handle Termination Professionally: This is the most important tip. As difficult as this can be, an employee should handle their termination without drama. This is usually one of the most difficult things for an employee 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 Take Employer Materials: Individuals should be very careful when leaving employment not to take proprietary employer materials, physical items, data 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 type 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 that can arise.

3. Try to Maintain a Reference for Future Employment: 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 employed by 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 an Agreement 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 on the day of termination. 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 about the Termination: Not every firing involves a wrongful termination. 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 majority of employment termination cases that we see, individuals are able to move forward with their career after termination with good planning and preparation. 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.