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.

Non-Compete Agreements in Virginia

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

Northern Virginia, given it’s proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large.

What is a Non-Compete Agreement?

A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area.

What Types of Issues Arise with Respect to Non-Compete Agreements in Virginia

Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored that they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.

Keeping in mind that these types of non-compete agreements must be drawn narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment.

Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts.  It is important for an employee to understand their obligations as well.

Obtain Legal Advice About Non-Compete Agreements

When entering into a non-compete agreement or when questions arise as a result of the non-compete agreement it is very important to seek counsel before signing this type of agreement or when questions of enforcement arise. Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at www.berrylegal.com for legal advice and consultation in such matters.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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Fairfax County Human Rights Discrimination Complaints

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

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.

 

 

Final Paychecks Owed to Former Employees in Virginia

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

In the Commonwealth of Virginia former employees are entitled to all of their previously earned wages, even if they are terminated from their employment. However, for various reasons sometimes employers attempt to avoid paying an employee their last paycheck. There are many reasons that this occurs. However, the nonpayment of wages owed can cause significant hardship for an employee and can be a costly mistake for an employer. There are laws and regulations that govern the issues related to the nonpayment of wages in the Commonwealth of Virginia at the state and federal levels.

When Last Paychecks are Due

An employer generally should pay a former employee’s final paycheck by the next pay period as it would be regularly due.  Some state laws vary on this issue, but failure to make prompt payment can violate a number of wage and overtime laws on a state and federal level.  State wage laws can cover non-payment and federal laws, such as the Fair Labor Standards Act (FLSA), can cover non-payment of overtime.

Virginia Wage Law

The Virginia Code § 40.1-29 provides that final payments to a terminated employee should be made on or before the employee would have normally been paid had the employee not been terminated. The Virginia Code imposes civil and criminal penalties for nonpayment of wages by an employer. The Virginia Code further prohibits employers from deducting portions of a final payment without the former employee’s consent with the exception of standard taxes and withholdings.

A number of state vary on the issue of whether an employee is entitled to receive accrued vacation or sick leave upon an employee’s departure. Virginia has taken the approach that fringe benefits such as vacation/annual/holiday leave, sick leave or severance pay are not required to be paid out by a former employer under the law. In addition, Virginia employers may establish any policy or no policy regarding fringe benefits at the termination of an employee.

If an employee in Virginia is confronted with nonpayment of final wages, the employee can contact the Virginia Department of Labor and Industry. The Virginia Department of Labor and Industry may assist an employee in obtaining payment of final wages after the employee files a complaint, but it does not handle claims for wages over the amount of $15,000.  Additionally, the failure to pay wages can be pursued in the court system.

Federal Wage Law

The FLSA is a federal law which governs the payment of overtime to employees.  When an employer does not make timely payment of a final check which includes overtime, there could be a FLSA violation which could be costly for an employer in terms of damages. If the payment of lost wages involves unpaid overtime, the United States Department of Labor, Wage and Hour Division may be contacted and an investigation may be initiated for FLSA overtime violations by the former employer. Additionally, the failure to pay overtime can also be pursued in court.

Conclusion

We represent employees and employers in regards to non-payment of wage cases.  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 www.facebook.com/BerryBerryPllc.