By Kimberly H. Berry, www.berrylegal.com
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 and is 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 termination proceedings by private employers in Virginia are at will, which generally leaves significant 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. One example is where an employee has an employment contract with the employer that provides more rights than at-will employees. Another example is where the Virginia employee’s termination was based on illegal discrimination, harassment or retaliation for bringing these types of claims.
Another exception involves a situation where an employer has violated a state or federal law in terminating the employee (e.g., discrimination, whistleblowing, retaliation), the termination could be considered wrongful and potential avenues to challenge the termination may be available. Such claims, mostly those involving whistleblower or other applicable claims are 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.
One step that a Virginia employee can take following an involuntary termination is to make an appointment with a Virginia employment attorney to review the issues related to the termination action in order to determine whether it can be considered a wrongful termination. An attorney can also help evaluate what steps may be taken to minimize the career damage that has just occurred and help the employee determine whether the action taken may be appealable.
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.
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. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.