Employee Leave for Virginia Employees

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

The following is an article on leave laws and rules that cover Virginia employees. Leave issues generally tend to come up either during the course of an employee’s employment or immediately following the end of an individual’s employment. Leave laws and regulations also vary by the type of employer and jurisdiction of the employer. For instance, federal, state, county and private sector employers have different laws and rules governing leave.

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Employee Monitoring in Virginia

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

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An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.

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Tips for Virginia Employees in Wrongful Termination and Discrimination Cases

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

The following are 6 employment tips that can be helpful when an employee in Virginia is facing significant employment issues like termination, discrimination or retaliation.

Six Employment Tips to Consider 

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Severance Agreements in Virginia

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

In Virginia, most employees are considered “at will,” which generally means they can be terminated or resign at any time. Even if they are “at will,” when an employee’s employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his / her rights, including the right to file suit for any work-related issues. In Virginia, in the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will almost always provide the employee with a severance agreement. It is important to obtain legal advice before signing such an agreement.

What is a Severance Agreement?

In Virginia, a severance agreement is a contract between an employee and an employer that specifies the terms of an employment departure. Severance agreements can be offered in cases of terminations, resignations, layoffs and/or retirement. They may be available in other types of situations as well. In order for a severance agreement to be valid, it must usually provide something of value to the employee to which the employee is not already entitled. For example, in most cases, a certain financial sum is provided to the departing employee by an employer in exchange for a waiver of rights, usually referred to as a general release, by the employee.

Additionally, in Virginia and many other states, employers are generally required to provide an employee time to consider a severance agreement before signing. The Older Workers Benefit Protection Act (OWBPA), in part, requires that an employer provide employees over 40 years of age with a 21-day consideration period, or a 45-day consideration period in the case of a large reduction-in-force (RIF), and at least a 7-day revocation period. Oftentimes, employers rush employees to sign a severance agreement and do not adhere to the procedures for severance agreements. The terms of a severance agreement are generally negotiable between the employer and employee. However, an employee will not necessarily be told this when the employer offers the severance agreement.

Considerations in Negotiating Severance Agreements

Some of the issues to consider in advance of signing a severance agreement may include, but are not limited to, the following:

Financial terms and timing of severance payments

Tax consequences

Non-disparagement clauses

Re-employment/re-hiring possibilities for departing employee

Continuation of employment benefits (i.e. health)

Unemployment compensation issues

Which claims are waived

Confidentiality terms

Scope of non-competition after leaving employment

Preservation of trade secrets

References and points of contact for prospective employers

Recommendation letters

Consequences of violating the severance agreement

Each severance case is different and an employee may need legal representation in negotiating a severance agreement. 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.

Conclusion

If you need assistance with negotiating a severance agreement 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 at www.facebook.com/BerryBerryPllc.

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.