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.

Defending Fairfax County Employees in Disciplinary Cases

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

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.

Reasonable Accommodations for Virginia Employees

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

RAWe are often asked about reasonable accommodations by employees in Virginia when they develop a medical condition that requires a change in
their duties or other adjustments. We advise private, federal, state and county sector employees in Virginia this regard. The reasonable accommodation process applies to both employees and job applicants in all states including the Commonwealth of Virginia.

What is a Reasonable Accommodation?

The usual first question that comes up is what is a reasonable accommodation?  A reasonable accommodation is an employee’s request to modify their employment conditions, assignments, hours, etc. in order to allow them to continue working in a position despite a disability. Most employees are covered under the Americans with Disabilities Act (ADA) which covers reasonable accommodations. Federal employees are covered under the Rehabilitation Act which is very similar to the ADA. According to these laws, employers are required to engage in the reasonable accommodation process to qualified employees unless it would create an undue hardship for them. The Equal Employment Opportunity Commission (EEOC) and other civil rights governmental entities enforce reasonable accommodation matters.

In the Commonwealth of Virginia, employees are also covered under the Virginians with Disabilities Act which applies to all employers. Under both the federal and state laws, the goal of the reasonable accommodation process is to enable a qualified employee with a disability the opportunity to enjoy an equal opportunity in employment.

How Does an Individual Request a Reasonable Accommodation?

A request for reasonable accommodation can be formal or informal. Some employers have created specific forms covering reasonable accommodation requests and others simply involve verbal discussions between the employee and their immediate supervisor. The most typical reasonable accommodation involves an employee that has developed a medical condition or disability that requires some modifications or adjustments to their working arrangements. Usually, an employee will ask for a reasonable accommodation by approaching their supervisor or Human Resources department, depending on the employer and asking for one. Once requested, there is usually a discussion about the reasonable accommodation requested.

The Interactive Process

The reasonable accommodation discussion between an employer and employee is often called the “interactive process” which simply means that the employer must engage the employee in attempting to resolve the reasonable accommodation request. The interactive process does not mean that an employer has to grant every accommodation sought, or even the specific one requested. The employer is required to give a reasonable effort at resolving the reasonable accommodation at issue.

Examples of Reasonable Accommodations

The following are some examples of reasonable accommodation requests. There are far too many to list, but the following are examples.

Example A: An employee develops carpal tunnel syndrome and needs a new keyboard because their current keyboard is aggravating their condition. A request for a new keyboard is a request for a reasonable accommodation.

Example B: An employee is undergoing medical treatment in the morning for epilepsy. He informs his supervisor that he needs an adjustment in his starting time so that he can take his medication in the morning before starting work. This is a request for a reasonable accommodation.

Example C: An employee develops a heart condition and needs to take daily breaks at a certain time in order to take their medication. A request to take breaks in order to take medication is a reasonable accommodation.

Example D: An employee develops a disability that causes them to be unable to perform the duties of their position. An employee’s request for reassignment is a request for reasonable accommodation.

There are far too many examples of reasonable accommodations to list here, as they vary based on an employee’s specific medical condition and needs.  Additional examples of reasonable accommodations for specific conditions can be found here.

Conclusion

When a Virginia employee is in need of a reasonable accommodation, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in the reasonable accommodation process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  We can also be seen on Facebook at Berry & Berry, PLLC Facebook Page.