Problems with Non-Compete Agreements for Employers and Independent Contractors in Virginia

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

An interesting question that has arisen recently is whether Virginia employers can use non-compete agreements with independent contractors. The answer is not entirely clear. There are many potential pitfalls for both the independent contractors that sign such agreements and the employers that attempt to enforce them. An employer may discover that its fully executed non-compete agreement with an independent contractor is unenforceable, but also subject itself to significant liability for misclassifying an employee.

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Wrongful Termination for Virginia Employees

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. Continue reading

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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Virginia Employees’ Protection from Retaliation for Safety and Health Complaints at Work

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

Virginia employees are protected by Occupational Safety and Health laws from retaliation and discrimination if they report safety and health issues in the workplace which affect other employees. In Virginia, an employee shall not be discriminated against or terminated in retaliation for filing a safety or health complaint, testifying or exercising a right under Virginia Code Ann. § 40.1-51.2:1 concerning employee safety and health.

Examples of Retaliation Potentially Covered by Virginia Law

Here are some examples where the Virginia law against retaliation might apply. Keep in mind that this particular Virginia law is focused on dangers reported that could affect an employee or other employees in the workplace.
1. An employee reports to the fire department that there is a gas leak in the office. The fire department finds the cause of the leak and the employer is required to upgrade the gas lines. The manager gets upset at the cost to fix the leak and fires the employee.
2. An employee informs her manager that work vehicles are unsafe and not maintained properly. The manager, rather than fix the work vehicles, decides to fire the employee as a means to keep her from complaining or exposing the issues.
3. An employee reports a severe mold problem in the workplace. As a result, the employer is forced to spend a significant amount of money to fix the mold problem. The Employee is fired as a result of reporting the issue.

Filing a VOSH Complaint of Retaliation or Discrimination

A Virginia Occupational Safety and Health (VOSH) complaint of retaliation or discrimination must be filed within 60 days of the discriminatory action with the Virginia Department of Labor and Industry. If not, the complaint is likely to be dismissed for lack of jurisdiction. Following the filing of a complaint, a VOSH investigator will contact the complainant and/or his/her counsel and will initiate an investigation if all of the requirements for jurisdiction have been met. The investigator will follow the VOSH Whistleblower Investigation Manual in evaluating the case. An investigation may lead to a settlement for the employee or could lead to sustained findings by VOSH. There is also civil court review for an employee if a sustained violation by the investigator is not found.

Conclusion

If you believe that your Virginia employer has treated you differently for reporting a safety and health issue that affects the health of employees or need assistance with another employment law issue 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.

Filing a Sexual Harassment Complaint in Virginia

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

Employees in the Commonwealth of Virginia have a number of forums for potentially filing a sexual harassment complaint. Individuals often also ask us to help them determine whether or not the facts in their case constitute sexual harassment. The general definition of sexual harassment, according to the Equal Employment Opportunity Commission (EEOC) is that it includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Continue reading

Where to File Discrimination and Harassment Complaints in Virginia

By John V. Berry, www.berrylegal.com

We often are asked by employees about their options for filing a discrimination or harassment complaint in Virginia. The answer is that it depends on many factors. For private, federal and other public sector employees in Virginia there are a number of options for filing a complaint of discrimination, sexual harassment, retaliation and/or an ongoing hostile work environment. The proper place for filing the complaint depends on a number of factors, including what type of employee you are, the type of discrimination, where you live, and your type of employer. When considering filing this type of complaint it is generally important to consult an attorney to determine the best forum in which to file your complaint. Additionally, it is important to note that where there is more than one option for filing a discrimination or harassment complaint that it is important to get legal advice on the best option given the facts of a particular case.

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Virginia Grievance Procedure for State Employees

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

2012 Grievance Form A

Our law firm represents Virginia state employees in their employment grievances filed against their individual state agencies.  Virginia has adopted an employee grievance procedure for Virginia employees to resolve their employment issues.  The Virginia Grievance Procedure has a number of steps in this process.  The grievance process is administered by the Virginia Department of Human Resource Management, Division of Employment Dispute Resolution (EDR).

Starting the Grievance Process

The first step in the grievance procedure for a Virginia state employee is to prepare a written grievance over the employment problem at issue.  The employee involved must usually file a written grievance within 30 days of the date that an employee knew or should have known about the issue being grieved. This is very important. If a grievance is not filed in a timely manner, the grievance will likely be dismissed. The grievance must be submitted on what is known as Grievance Form A. If there is not enough space on Grievance Form A, attachments may be used in filing the grievance.  The first step of the grievance process is generally filed with the employee’s immediate supervisor.

The Grievance Procedure Steps

The grievance process, once initiated, generally goes through 3 separate steps in Virginia.  First, there is a First Step grievance conducted by the employee’s immediate supervisor.  If the matter is unresolved, it may proceed to a Second Resolution Step Meeting.  As opposed to the First Step, a meeting is required during the Second Step.  The Second Step is usually considered a fact finding session.  If the Second Step does not resolve the grievance, the employee may then take their grievance to the Third Step.  If the Third Step does not resolve the grievance and an employee wishes to take their grievance forward, he or she must then ask that their grievance certified for a hearing by the agency head.

In some cases, where a grievance involves a demotion, suspension without pay or any other action that results in an actual loss of wages, the employee may be able to elect the Expedited Process for grievance review.  This Expedited Process generally starts at the Second Step procedures and is reduced to a single step.  Dismissals due to formal discipline or unsatisfactory job performance usually will not go through the grievance steps, but rather proceed to the Grievance Hearing Process.

The Grievance Hearing Process

Grievances not resolved in the grievance process may or may not next move to the Grievance Hearing Process.  Please note that not all grievances are eligible for a grievance hearing.  Cases involving formal disciplinary (a written notice) actions and dismissals for unsatisfactory performance usually qualify for the hearing stage.  Other types of grievances involving adverse employment actions may also qualify for a hearing.  These can include: (1) unfair application of state/agency policies; (2) discrimination; (3) arbitrary or capricious performance evaluation; (4) retaliation for participation in the grievance process; and (5) other types of informal discipline (i.e. transfers, assignments, demotions and suspensions that are not accompanied by a formal notice by taken for disciplinary reasons).  If a grievance is deemed by an agency head not
to be eligible for a hearing, the employee may appeal that decision to EDR.

The Grievance Hearing Process consists of the appointment of a Hearing Officer, a pre-hearing conference and the formal hearing, in addition to other procedures.  During the hearing, documents will be introduced as exhibits and witnesses will be examined and cross-examined. If the grievance involves a disciplinary matter, then a state agency must prove their case by a preponderance (51%) of the evidence presented.  Following the hearing, the Hearing Officer will provide a decision in writing.  The Hearing Officer may uphold or deny the grievance.

Court Review

If the Hearing Officer rules against a party, that party can then appeal the adverse decision to the EDR or to the Virginia Department of Human Resources Management (DHRM), depending on the issue to be appealed before it is considered final.  Once the hearing decision becomes final, a party can then appeal an adverse determination to Circuit Court and from there to the Court of Appeals.  A petition can also be filed requiring implementation of the final hearing decision.

Conclusion

When a Virginia state employee files an employment grievance, it is important to obtain legal advice and legal representation. Our law firm stands ready to advise and represent Commonwealth of Virginia employees in in their state employment grievances. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.