Monthly Archives: April 2016

Non-Compete Agreements in Virginia

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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

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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

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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.