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

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.

Virginia Severance Agreements

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

Employees in Virginia are generally considered “at will,” which means they can resign
and/or be terminated at any time. When employment ends, an employer may offer a severance package to an employee in exchange for the employee’s waiver of rights. However, employers, in the absence of an agreement or severance policy, generally have no obligation to provide employees severance pay. If severance pay is offered, an employer will offer the employee a Severance Agreement.

What are Severance Agreements?

A Severance Agreement is a contract between the employee and an employer that provides the terms of the end of employment between the employer and the employee. Severance Agreements may also be offered to employees who are laid off or facing retirement. In addition, depending on the circumstances, a Severance Agreement may be offered to an employee who resigns or is terminated. The Severance Agreement must have something of value (also referred to as consideration) to which the employee is not already entitled. Employers are generally required to provide an employee time to consider the Severance Agreement before signing.

An employee usually has a 21-day consideration period to accept and at least a 7-day revocation period to revoke an employer’s Severance Agreement if the employee is over 40 years of age. For a group or class of employees (i.e., two or more employees) age 40 or over, employers must provide a 45-day consideration period and at least a 7-day revocation period.

Commonly Considered Terms

Items and/or terms that the employer and employee may place in these agreements include:

• Financial terms, tax issues and timing of severance payments

• Continuation of employment benefits (i.e. health, etc.)

• Issues related to unemployment compensation

• References (positive, neutral)

• Claims to be waived (i.e. discrimination, etc.)

• Confidentiality

• Non-Disparagement

• Re-hiring potential

• Scope of possible non-competition

• Preservation of trade secrets

• Recommendation letters

• Consequences of violating the agreement

Severance Agreements will also usually include a general release or waiver that requires that the employee cannot sue his or her employer for wrongful termination or attempt to seek unemployment benefits upon the effective date of a fully executed Severance Agreement.

Conclusion

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. If you need assistance with a Severance Agreement or other employment matter, 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.