US Regional Employment 2020

Last Updated September 30, 2020

Virginia

Law and Practice

Authors



Kaufman & Canoles is a business-oriented law firm celebrating over a century of operations. Practicing from eight offices across the Commonwealth of Virginia, the firm has one of the largest labor and employment law teams in the state, including three former chairs of the Virginia Bar Association Section on Labor Relations and Employment Law. The team works closely with the firm's employee benefits group and its business and transactional attorneys, first and foremost to counsel clients to prevent problems. Experienced first-chair litigators and jury trial attorneys – a vanishing breed in modern employment law – stand ready to assist at all phases of the process, from administrative agencies through the appellate courts and Supreme Court. The firm represents employment law clients of all sizes and in every industry, from massive shipyards to mid-sized financial institutions and to local government and quasi-governmental agencies. True to the firm’s founding principles, it represents employers – and only employers.

The Commonwealth of Virginia has been in the forefront of preventative health and regulatory responses to the COVID-19 pandemic. The Governor has moved vigorously in imposing anti-infection measures, and has acted cautiously in ratcheting back restrictions only as the public health situation warrants. The Governor has not hesitated to re-impose or strengthen restrictions, even after they have been relaxed, when the public safety has required it.

Virginia’s rigorous response to the pandemic is characterized by its first-in-the-nation mandatory occupational health and safety rules for COVID-19 countermeasures. See 4.4 Workplace Safety.

Nonetheless, the total number of initial claims for unemployment benefits filed in Virginia during the pandemic, from March through the end of August 2020, was greater than the combined total of initial claims for unemployment filed during the 2001 recession plus the entirety of the Great Recession of 2007-09. The labor market as a whole continues to experience a great deal of slack, while skilled and professional workers continue to remain in relatively short supply.

Virginia employers struggle, as do employers nationwide, with implementation of the Families First Coronavirus Response Act, which mandates Emergency Paid Sick Leave for six pandemic-related reasons, and up to 12 weeks of Expanded Family and Medical Leave Act leave to address parents of children whose schools are closed or childcare unavailable. In Virginia, localities may exercise an option to open live, virtually, or wholly online.

Virginia has been fortunate not to be a trigger-point for incidents of police-community violence, but the Commonwealth’s status as a southern state and the presence of Richmond, capital of the Confederacy, means that "Black Lives Matter" ("BLM") protests excite passions. As far back as August 2017, the “Unite the Right” rally in Charlottesville, which was triggered by attempts to remove Confederate monuments from a public park, resulted in three deaths and over 30 non-fatal serious injuries; one protestor who drove his car into a group of counter-protesters, killing one, was sentenced to life in prison plus 419 years. The removal of Confederate monuments, rather than police-community violence, continues to be the focus of popular demonstrations in Virginia.

The “Me Too” movement and the "BLM" movement have prompted a radical sea change in Virginia employment law in 2020. See 4.3 Discrimination, Harassment, and Retaliation Issues, 6.2 Discrimination, Harassment, and Retaliation Claims and 6.7 Possible Relief.

Virginia has enacted no state-level restrictions on confidentiality in the settlement of sexual harassment or civil assault cases. There are no state-level laws imposing restrictions on the effectiveness of agreements to arbitrate sexual harassment or assault claims.

Virginia does not impose any legal requirement for training employees in harassment avoidance and reporting (as do various states and localities, including California and New York). Over the last few years, more mid-sized and larger employers are adopting periodic harassment, diversity, and sensitivity training regimens voluntarily. It is best practice for Virginia employers to engage in periodic training of employees and managers.

The Commonwealth of Virginia has a vibrant economy, based on hi-tech companies, an innovative government contracting sector, and a variety of complementary businesses.

Virginia is one of the top ten states in the nation in median household income. Three of the six wealthiest counties in the nation are in Virginia. Unemployment in Virginia was at 8.0% in July 2020, despite the pandemic, in comparison to a national unemployment rate of 10.2%.

The Dulles Technology Corridor rivals Silicon Valley in hi-tech pursuits – 70% of the globe’s internet traffic flows here. The Northern Virginia Technology Council is the largest technology council in the USA. A number of leading businesses and government-business partnerships in this area focus on artificial intelligence development, including work with the Defense Advanced Research Projects Agency (DARPA), which has its headquarters in Virginia. Virginia is home to the Internet Security Alliance, the nation’s premiere private-sector initiative for a sustainable and effective cybersecurity regime.

Hampton Roads is home to the only facility in the world capable of designing and building nuclear supercarriers. CVN 79 John F. Kennedy was christened in December 2019, and on order are CVN 80 USS Enterprise, and CVN 81 (USS Doris Miller, the first carrier named after an African-American enlisted man), both to be built in Virginia. The Hampton Roads area is home to the headquarters of the Allied Command Transformation, the only North Atlantic Treaty Organization (NATO) headquarters in the western hemisphere.

Virginia appears to be transitioning from a “purple” state towards Democratic “blue”. Both of Virginia’s US Senators – as well as Virginia’s governor, lieutenant governor, and elected attorney general – are Democrats. Both houses of the Virginia legislature, the General Assembly, long controlled by the Republicans, are now Democratic, prompting an explosion of pro-employee employment legislation effective in the summer of 2020.

Virginia has been a right-to-work state since 1946. A recent attempt to add the right-to-work principle to the Virginia Constitution failed, but there is no prospect that the statute will be repealed any time soon, even with a newly Democratic state legislature.

Estimates for 2020 suggest that about 4% of Virginia’s private workforce is unionized, as opposed to a national rate of about 10.3%; the only US states with lower unionization rates are North and South Carolina.

Virginia has no state-level agency analogous to the federal-level National Labor Relations Board (NLRB). The Virginia Department of Labor and Industry has no general labor or union-related jurisdiction.

Virginia is subject to nationally applicable NLRB rules and regulations. Since 2017, the NLRB has reassessed and reversed the following Obama-era holdings.

  • Since 2017, the NLRB’s campaign against social media policies, claiming they inhibit collective action among employees in violation of Section 7 of the National Labor Relations Act, has abated.
  • In 2019, the NLRB overruled longstanding precedent allowing unions to ward off decertification decisions by the use of Unfair Labor Practice charges (known as “blocking charges”).
  • In 2019, the NLRB overruled existing precedent creating a presumption that a worker protesting working conditions in a group setting was engaging in collective action.
  • In 2019, the NLRB implemented a recent US Supreme Court decision, holding that it did not violate the NLRA to require workers to agree to class action and collective action waivers in arbitration agreements.
  • In 2017, the NLRB overturned its “joint employment” doctrine. The Board issued a new, pro-employer, proposed regulation. However, that regulation was overturned by a federal court in September 2020.
  • In 2019, the NLRB substantially expanded the ability of employers to classify workers as independent contractors rather than as “employees”, again overturning the Obama-era precedent – however, see 2.1Defining and Understanding the Relationship (“Independent Contractor” issues), discussing the major Virginia-law changes in 2020 in independent contractor classification.
  • In 2019 the Board held that misclassifying “employees” as “independent contractors” is not itself an Unfair Labor Practice.

Employment at Will

Virginia has a firm commitment to the doctrine of at-will employment. In the absence of a contract setting the length of the employment relationship or restricting the reasons it may be terminated, every employer has the right to terminate the relationship at any time, for any (lawful) reason, or for no reason at all, upon reasonable notice.

Under Virginia law, the concept of “reasonable notice” has no temporal factor; the only question is whether the notice reasonably communicates to the employee that she or he has been fired. Virginia did not recognize the tort of “wrongful termination of employment in violation of public policy” until 1985. The first Virginia Supreme Court decision to hold that a firing based on race or sex was “wrongful” did not occur until 1994, and was promptly reversed by statute (but see 4.3 Discrimination, Harassment, and Retaliation Issues on expansive new Virginia laws in this area).

Virginia will analyze any claim of an oral agreement for employment consistent with the Statute of Frauds. Only oral agreements that can be performed (not merely breached) within one year are enforceable. Oral employment contracts should never be used for Virginia employees.

“Independent Contractor” Issues

In 2020, the Virginia legislature completely re-wrote Virginia law regarding the classification of workers as “employers” or as “independent contractors” and provided workers with concrete remedies heretofore lacking to challenge an employer’s designation.

Under new Virginia law, any person who “performs services for any employer for remuneration” is presumed to be an employee, and not an independent contractor, for purposes of Virginia workers’ compensation, unemployment, and labor and employment law. The presumption may be overcome, but only if the employer proves that the person qualifies as an independent contractor under the “most recent [federal Internal Revenue Service] guidelines”. The burden of proof is on the employer. This general definition should make Virginia employers much more careful when attempting to claim their workers are not “employers”.

A plethora of new Virginia laws give this presumption of “employment” real teeth, as follows.

  • Any person who believes they have been retaliated against for reporting misclassification to an appropriate authority now has a civil right of action to sue their employer in court. The Commissioner of the Department of Labor and Industry may also impose civil penalties for retaliation.
  • An employee who believes she or he has been misclassified may bring a civil action against the employer in court. A successful employee may recover lost wages, salary, employee benefits, compensation for expenses that would have been covered by insurance, compensatory damages, and attorney’s fees and costs.
  • It is now unlawful even to ask a worker in Virginia to enter into a contract that mischaracterizes an employment relationship as an “independent contractor” relationship.
  • An employer who intentionally misclassifies a worker as an “independent contractor” rather than an “employee” may be debarred from doing business with the Commonwealth of Virginia.
  • Each of the affected agencies (Workers Compensation Commission, Virginia Employment Commission, and others) may separately impose penalties upon an employer for misclassifying employees as independent contractors.

Virginia imposes no state-law requirements relating to immigration or foreign worker issues.

Virginia’s workforce includes a large foreign-born component. One in eight Virginia residents are foreign-born, as are one out of every six Virginia workers. The most prevalent type of employment for foreign-born Virginians is as “professional, scientific, and technical employees”.

Virginia employers generally are familiar with temporary work visas and the relevant federal programs. Four Virginian metropolitan areas are among the top jurisdictions for the number of H-1B visas issued each year.

Although certain extractive industries (eg, coal) and manufacturing sectors (eg, shipbuilding) have union-based activities, collective bargaining and union activities do not occupy a substantial place in Virginia employment law. Approximately 96% of Virginia employees do not belong to a union.

Virginia Law Constraints on Interviewing and Hiring

A number of Virginia cities and counties have adopted local ordinances that restrict inquiries about criminal history, or prohibit those inquiries until a later stage in the interview process. “Ban-the-box” ordinances are in effect in Arlington, Norfolk, Newport News, Alexandria, Richmond, Petersburg, and Portsmouth. The validity of those local ordinances is open to question, because Virginia adheres strictly to the “Dillon Rule”: cities and counties may only exercise regulatory power when it has been granted expressly by the Commonwealth. Nevertheless, private employers are well advised to comply with all such local ordinances.

As of July 1, 2020, private employers are prohibited from asking an applicant about arrests, charges, or conviction for marijuana possession. An applicant responding to a general question about criminal convictions may decline to identify convictions for marijuana possession. A conviction for marijuana possession in Virginia is now a civil matter subject to a USD25 fine, while an employer who intentionally asks whether an applicant has been convicted of marijuana possession commits a criminal offense punishable by a possible fine of USD2,500 and up to 12 months in jail.

Virginia has not enacted any restriction on inquiries regarding salary history for private employers.

Virginia has not enacted any specific state-level legislation on the use of credit checks in the employment application context.

Questions eliciting information that might be used to discriminate in hiring should be avoided. Since Virginia law includes “childbirth or related medical conditions” and “marital status” as protected classifications, employers in Virginia would do well to avoid questions regarding childbirth, related medical conditions, or marital status. The 2020 amendments to this law add gender identity and sexual orientation to the group of protected characteristics, and explicitly include characteristics associated with a particular race (such as hair style) under the rubric of race discrimination. Subjects touching on these matters must be avoided.

Virginia law prohibits an employer from making an employee or prospective employee pay for any required medical examination.

Federal Law Constraints on Interviewing and Hiring

Pursuant to the federal Age Discrimination in Employment Act, it is inappropriate to ask an applicant age-related questions in the hiring process. Pursuant to Title VII of the federal Civil Rights Act, it is inappropriate to quiz prospective employees on plans to have children, on their religious observances or preferences, or on their ancestry. The federal Americans with Disabilities Act makes it inappropriate to ask an applicant about a mental or physical impairment, or to require a medical examination of an applicant prior to a conditional offer of employment.

Low-Wage Employees May Not Be Bound to Covenants

As of July 1, 2020, Virginia employers are prohibited from entering into, enforcing, or threatening to enforce an agreement that restrains, prohibits, or otherwise regulates post-employment competition by a low-wage employee, currently defined as anyone who earns less than USD59,124 per year. The prohibition governs only restrictive covenants entered into on or after July 1, 2020. The new prohibition does not affect independent contractors, and compensation through commissions, incentives, and bonuses is subject to specific consideration.

Virginia law now creates a private right of action against anyone who attempts or threatens to enforce a prohibited covenant against a low-wage employee. The employee may recover lost wages, “damages”, liquidated damages, and attorney’s fees and court costs. The Commonwealth has the right to assess a civil penalty against such an employer in an amount up to USD10,000. The new prohibition is accompanied by an employee-notice, posting provision.

The new law provides that it does not restrict the ability of employers to enter into agreements with low-wage employees restricting their post-employment use or disclosure of confidential information.

General Law Regarding Restrictive Covenants

Despite the routine recitation that non-competition covenants are “disfavoured” and “strictly construed”, they are nonetheless routinely enforced. Virginia law on the enforcement of covenants is judge-made; no state-level statute addresses the enforceability of such a covenant.

Virginia law does have several idiosyncrasies – for example, the following.

  • Virginia does not “blue pencil” or modify non-competition agreements. Virginia courts will not enforce a covenant in part, or modify any geographical or temporal term of the restriction.
  • Virginia courts generally engage in a searching inquiry regarding the degree to which the covenant is tailored to protect the legitimate business interest of the employer. Courts routinely decline to enforce covenants that purport to restrict competition in overly broad industries such as “motors” or “sales”.
  • Covenants entered into between businesses are not disfavoured in Virginia, and there is some decisional authority to suggest that a similar principle should be used to evaluate covenants entered into by individuals sophisticated and experienced in business.
  • Covenants may be imposed by a Virginia employer during the course of employment. Virginia does not require separate consideration or imposition of the covenant at the beginning of employment, reasoning that continued at-will employment is sufficient consideration.
  • Virginia courts are much more willing to enforce non-solicitation agreements (whether prohibiting solicitation of former co-workers or of former clients) than true non-competition agreements.

Every restrictive covenant must be sharply drafted to be no broader than necessary to protect the legitimate business interest of the employer, while permitting the former employee to earn a living. Facts are important, and the geographic restriction may range from half a mile (in a reported Virginia Supreme Court opinion) to worldwide, depending on the competitive presence of the former employer. Generally speaking, Virginia courts have enforced non-competition agreements governing individuals with lengths of up to two years, and governing companies with lengths of up to five years.

Federal law, and in particular the Americans with Disabilities Act of 1990, has for many years restricted employers from making medical-related inquiries of employees or applicants. The COVID-19 pandemic, and guidance from the U.S. Equal Employment Opportunity Commission (EEOC) that the pandemic creates a “direct threat” of imminent harm to co-workers, has given employers much more leeway in this area during the pandemic emergency.

However, employers must be careful to confine inquiries and examinations to those directly related to reducing the threat of COVID-19. For example, during the pandemic emergency it is permissible to ask an employee whether she or he has symptoms of COVID-19 (such as unexplained headache, persistent unexplained fever of 100.4°F or higher, or unexplained loss of sense of smell or taste), in order to ensure employees ill with COVID-19 do not come into the workplace.

Medical or mental/emotional impairment questions unrelated to the transmission of COVID-19 still violate the Americans with Disabilities Act. Employers must also remember that a separate federal law, the Genetic Information Non-Discrimination Act (GINA) generally prohibits an employer from asking for medical information about an employee’s family members (save in specifically-exempted circumstances such as a request for leave under the Family and Medical Leave Act).

Virginia state law does not provide for any general right of privacy in favour of workers as against a private employer. It is prohibited, by statute, to use the name or image of an individual for commercial purposes without the individual’s permission; employers using employee photographs or names in promotional materials should first seek such permission.

The Virginia Computer Crimes Act provides Virginia employers with a strong tool for ensuring data privacy. The Act makes it unlawful for a person (including an employee) to use a computer or computer network without permission:

  • to commit computer fraud, defined as larceny, embezzlement, or obtaining property by false pretences;
  • to commit computer trespass, which includes using a computer or network to alter or erase any data; or
  • to commit computer invasion of privacy, which is defined as intentionally examining any employment, salary, credit or any other financial or identifying information, knowing the person does not have the authority to review the information.

Generally, emails between an employee and the employee’s private lawyer, sent over the employer’s computer, can be accessed and reviewed by the employer and lose their privileged status. Virginia employers should apprise their employees of these principles in a written policy expressly delimiting the authority any employee has to access and use the employer’s computer system. Virginia employers also should advise their employees, in a written policy, that the employee has no expectation of privacy in any communication or data sent over a computer or network owned by the employer.

Virginia has adopted the Uniform Trade Secrets Act in almost all of its particulars. Virginia law varies from the Uniform Act in that it includes unauthorized use of a computer or computer network as one of the “improper means” by which a trade secret may be misappropriated. Virginia law limits the award of punitive damages to the lesser of twice actual damages, or USD350,000. Virginia courts have held that mere acquisition of a trade secret, even without using that trade secret, constitutes unlawful misappropriation.

In cases involving theft or misuse of confidential information where the information does not rise to the level of a trade secret, Virginia courts routinely enforce contracts by which employers require employees to maintain the confidentiality of information.       

The Virginia legislature has been influenced decisively in the field of employment law by the combined force of the “Black Lives Matter” and “Me Too” movements. Virginia also has become the first state in the South to enact comprehensive employment protection for the LGBTQ community.

Virginia law on discrimination changed dramatically on July 1, 2020, when the new “Virginia Values Act” went into effect. Before this date, the Virginia Human Rights Act broadly prohibited discrimination in the termination of employment, but the remedies available under that law were so narrow as to be meaningless. This has undergone a sea change, and the Virginia Values Act now makes a panoply of remedies – broader than under federal law – available to employees. See 6.2 Discrimination, Harassment, and Retaliation Claims.

With respect to the types of activities that may be unlawful, as of July 1, 2020, Virginia imposes the following:

  • Virginia law now covers a broad range of protected categories, including race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or status as a veteran;
  • the term “race” is defined broadly, to include “because of” or “on the basis of” traits “historically associated” with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists;
  • the term “sex” is defined broadly, to include “because of” or “on the basis of” pregnancy, childbirth, or related medical conditions, including lactation;
  • the term “gender identity” is defined broadly, to include gender-related identity, appearance, or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth – “sexual orientation” includes a person's “actual or perceived” heterosexuality, bisexuality, or homosexuality;
  • the law requires “reasonable accommodation” for pregnancy, childbirth, related medical conditions, and lactation.

In contrast to prior law prohibiting only discriminatory discharge, the law now prohibits any discrimination in the terms and conditions of employment – that is, also prohibits harassment – for employers with 15 or more employees. For employers with more than five but fewer than 15 employees, only a discriminatory discharge is covered. Special rules govern (i) age discrimination, where the Virginia law covers only employers with more than five but fewer than 20 employees, and (ii) disability discrimination, where the Virginians with Disabilities Act remains unchanged.

The new Virginia Values Act also makes retaliation against an employee, whether for opposition to an unlawful practice or for participation in a proceeding, unlawful. Former law had no provision barring retaliation.

The publicity surrounding the “Me Too” movement and, particularly, the “Black Lives Matter” movement have made Virginia employers and employees much more sensitive to all forms of mistreatment and friction in the workplace, including unintentional and implicit bias issues. Virginia courts have not yet undertaken to address these issues in litigation in any substantial manner, but implicit bias and diversity training has become a commonplace part of “harassment avoidance” training for companies.

Virginia law does not mandate any harassment or discrimination training, although it remains best practice to conduct periodic training for all levels of company employees, from line workers through the C-suite.

Virginia is the first state in the nation to enact a comprehensive mandatory regulatory occupational safety and health scheme in response to the COVID-19 pandemic. The Virginia Department of Labor and Industry published an Emergency Temporary Standard (ETS) which became effective on July 27, 2020. The Virginia Occupational Safety and Health (VOSH) Program has been fully approved by the federal Occupational Safety and Health Administration since 1988. VOSH is administered through the Virginia Department of Labor and Industry.

The ETS requirements vary based upon the hazard classification of the employees in every fixed or other designated workplace. All employers are required to assess and classify the COVID-19 risk for each of their positions. Classifications are “very high”, “high”, “medium”, or “lower”, depending on the risk of employee exposure to COVID-19. It is possible for a single employer to employ staff with different risk hazard classifications at various sites or even at the same site.

Violations of the ETS could subject an employer to a citation with penalties that range from zero to likely several hundred dollars for each violation determined as "Other Than Serious", and up to USD13,494 for each "Serious" violation. Repeat or willful violations could result in up to ten times that, or USD134,943. In very rare cases, such as a violation that is both repeat and willful, a criminal penalty may apply.

The ETS requirements are detailed and rigorous. In general, for low and medium-risk employees, a specified regimen of training and education is required. Administrative and engineering controls, including physical distancing and the use of PPE, are specified. Return-to-work standards are adopted.

The ETS also requires all employers to report confirmed cases of COVID-19 among their employees to co-workers (while respecting the infected individual’s privacy), to the building operator/owner, and to the Commonwealth government. The employer is required to make the report within 24 hours of learning of the case.

With respect to non-pandemic issues, VOSH has adopted the majority of federal health and safety standards under OSHA, but also has adopted unique Virginia health and safety standards in a number of areas, including:

  • telecommunications industry standards for work in confined places and general approach distances for electrical hazards;
  • overhead high voltage line safety;
  • medical services and first aid availability in construction; and
  • field sanitation in agriculture.

Virginia employers are also subject to the requirements of the federal Occupational Safety and Health Act, including the “General Duty Clause” that requires all employers to provide a safe workplace.

For the first time, Virginia has adopted a minimum wage law that requires payment of an hourly rate higher than the federally established minimum wage. The minimum hourly wage for employees in Virginia will be USD9.50 per hour beginning in May 2021, and will rise on a periodic basis until it reaches USD15 per hour on January 1, 2026.

Virginia imposes few other state law requirements on compensation and benefits.

Virginia has not yet imposed any requirement that essential workers forced to work during the pandemic receive additional hazard pay, although the issue has been considered.

Federal requirements to comply with the Employee Retirement Income Security Act (ERISA) and the Comprehensive Omnibus Budget Reconciliation Act (COBRA) are fully in force in Virginia. While Virginia does have a “mini-COBRA” statute in place, the Commonwealth has not passed a “mini-ERISA”.

Policies, handbooks, and manuals provided to employees by Virginia employers may include a brief summary of ERISA and COBRA rights, but should always include a disclaimer that the terms and conditions of any ERISA benefit are always governed by formal Plan documents, and that COBRA benefits are governed by law. Policy, handbook, or manual descriptions should always state that in the event of any difference between formal Plan documents and the manual, the terms of the Plan will be dispositive.

Forum and Procedural Issues

Both federal and state courts in Virginia pride themselves on the rapid resolution of disputes, although the pandemic has imposed court closures, the suspension of jury trials, and extreme delay in proceedings.

The courts in the Eastern District of Virginia are the fastest federal courts in the country, with a median time between the initial filing of a complaint and a trial on the merits of approximately 13 months. The federal court is known nationwide as the “Rocket Docket”. State courts have emulated the speed at which the federal court acts, particularly in more urban jurisdictions, with an aspirational time from filing to trial of one year. The quality of the judges in both federal and state court is unusually high.

The federal courts in Virginia have a free, voluntary judicial mediation program. The parties to a case may engage in a prompt and confidential mediation session with a federal magistrate judge in an attempt to settle the case. In state court, many but not all jurisdictions in Virginia offer free and occasionally mandatory mediation of claims, usually overseen by a retired state court judge.

Virginia has adopted the Uniform Arbitration Act, and both state and federal courts almost always enforce arbitration agreements under either the Virginia or the Federal Arbitration Act.

Employers in Virginia should be aware that the Virginia state court system has a number of idiosyncrasies. There is no right of appeal in civil cases – for example, the Virginia Court of Appeals has limited jurisdiction (criminal, workers compensation, domestic relations) and appeals to the Virginia Supreme Court are mostly discretionary (with the Court usually declining plenary briefing and argument in some 90% of civil cases). Certain aspects of Virginia civil court practice are remnants of an earlier time: one may "interpose a demurrer" or "crave oyer". Perhaps most importantly, summary judgment before trial – commonplace in employment cases in federal court – is all but unobtainable in Virginia state court, due to restrictions on the materials that can be used to support such a motion in a case involving an individual as one of the parties.

Termination for Cause or No Cause

Due to Virginia’s strong adherence to the principle of at-will employment, state law has not developed any generally accepted definition of “cause” for the termination of employment. In the absence of a collective bargaining agreement or a written employment contract, no cause is ever needed for a termination.

Employees discharged for cause (serious misconduct connected with employment) may be disqualified from receiving benefits from the Virginia Employment Commission under the Virginia Unemployment Compensation Act. “Misconduct” is a higher standard than mere inability to perform the job, and includes, for example, a positive drug test, an intentionally false or misleading statement regarding prior criminal history made in an employment application, or chronic absenteeism in deliberate violation of a known employer policy. In addition, individuals who leave work voluntarily without good cause are disqualified for benefits.

The Virginia Employment Commission has struggled with defining the eligibility of employees who leave work due to a fear of contracting COVID-19. Some other states have determined that a well-founded fear of infection, perhaps associated with some underlying condition predisposing the employee to greater harm if infected, may constitute “good cause” for leaving work. Virginia has not taken that road, and generally denies benefits to workers who have resigned voluntarily from available work due to COVID-19 fears.

Virginia employers are subject to the federal law requirements of the Worker Adjustment and Retraining Notification Act (WARN). Virginia has no state-level counterpart to WARN.

Virginia law does not impose any requirement to pay severance pay to an employee leaving employment.

Virginia law does not impose any requirement to pay an employee for accrued but unused sick leave, or for accrued but unused vacation leave or paid time off (PTO). However, an employer may assume such an obligation by engaging in a consistent practice of paying for such accrued time off, or by promulgating a policy that such payments will be made (even if the policy is in a manual or handbook that contains an appropriate non-contractual disclaimer). In such cases, the accrued but unpaid time is treated as unpaid wages. See 6.3 Wage and Hour Claims. Virginia employers should avoid making any unconditional representations about the payment for unused time off, and should limit the carry-over of accrued but unused leave from year to year.

Virginia state law imposes no limit on the ability of a Virginia employer to limit or eliminate the carry-over of unused leave.

Virginia has no state-level law requiring the accrual of sick leave, or any form of paid time off, on any particular basis.

It is commonplace for Virginia employers to obtain releases from departing employees in exchange for some form of additional consideration, such as otherwise-absent severance benefits. It may be best practice to obtain a release from any employee who is terminated involuntarily. Under Virginia law, the sine qua non for the enforcement of any release signed by a former employee is that the employee receives some additional payment to which the employee otherwise would not be entitled by law. If such additional consideration is present, Virginia courts will enforce the release under almost all circumstances.

Wrongful Termination Torts

Only three types of employment termination have been held “wrongful” under Virginia common law:

  • where an employer fires an employee for exercising a right conferred on the employee by state statute (for example, terminating an employee who is also a stockholder for not voting her or his share of stock as the employer directed);
  • where an employer fires an employee for the employee’s refusal to commit a crime; and
  • where an employer fires an employee in violation of a clearly articulated public policy, when the public policy violated by the employer was explicitly expressed in a state statute, and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy.

The common-law cause of action for wrongful termination in Virginia is a tort claim. Compensatory damages (including damages for emotional distress) and punitive damages can be awarded.

The broad expansion of Virginia employment law in 2020 in the field of wage and hour law, harassment and discrimination law, general whistle-blower law, and elsewhere has fueled discussion as to whether some or all of the new statutes may also support common law wrongful termination claims.

Common-Law Claims Arising During the Termination Process

Several emerging common-law issues have confronted Virginia employers.

Successful common-law defamation has been made against employers, based on performance counselling documents or termination documents. While the Virginia Supreme Court has been careful to parse out non-actionable “opinion” from actionable “false factual statements”, the ability of an employee to bring a claim against her or his employer for defamation based on internal performance documents has surprised many employers. Under Virginia law, a false statement that is derogatory of the subject’s ability to perform her or his trade or profession is per se defamatory; no proof of damages is required.

Virginia recognizes common-law claims against employers based on the theory of negligent hiring of an employee and negligent retention of an employee (but not yet negligent supervision). The gravamen of each claim is knowledge by the company that a particular employee is likely to cause a particular type of harm, coupled with either the hiring or retention of that employee despite the known risk of harm.

Virginia recognizes the common-law torts of negligent infliction of emotional distress and of intentional infliction of emotional distress. These common-law claims are often asserted in employment litigation, but are seldom successful in Virginia.

Written employment contracts are most often found at the higher levels of management, employees who work regularly with highly confidential information, professionals, and employees on more complicated commission arrangements. Virtually all non-managerial Virginia employees have no written employment agreement and are terminable at will.

Employees who assert a claim for breach of a written employment contract often fare well in Virginia courts. Virginia does not, however, allow the award of punitive or emotional distress damages in contract cases.

Claims against employers based on the violation of handbook policies, where a proper “non-contractual” disclaimer is contained in the handbook, are not successful in Virginia.

Written documentation at all stages of the employment relationship is strongly recommended, although not required by law in Virginia. For all employees, an offer letter explaining whether the position is exempt or non-exempt for overtime purposes, stating a starting date, and including a starting compensation amount, is appropriate. Such a letter should contain a disclaimer that it does not alter the at-will status of employment.

Written communications documenting the termination of the relationship are recommended. The termination letter should not be detailed; it is often the case that all of the reasons for termination are not mustered at this stage or known to the HR professional communicating the firing. An employer who raises unarticulated reasons for termination in a later proceeding may, under federal law, be held to have created evidence of pretext in the termination, or even evidence of discriminatory intent.

The existence of written position descriptions is not required by any Virginia law, but they are generally useful. Written position descriptions should include the “essential functions of each position”, a term of art for individuals seeking protection under the federal Americans with Disabilities Act.

The combined effect of the "BLM" and "Me Too" movements in Virginia resulted in a fundamental rewriting of Virginia anti-discrimination law, effective July 1, 2020. Both the characteristics protected from discrimination (see 4.3 Discrimination, Harassment, and Retaliation Issues) and the remedies for discrimination have been expanded greatly.

For the first time, Virginia discrimination law bans both discrimination in the termination of employment, and also (for employers with more than five employees) harassment and other forms of discriminatory treatment in the terms and conditions of employment.

For the first time, Virginia law offers genuine remedies to those who have suffered discrimination, retaliation, or harassment, as detailed below.

  • The Virginia Division of Human Rights, a part of the Office of the Attorney General, investigates claims of discrimination and may bring suit. The DHR role is analogous to that of the EEOC in federal law claims. In a suit by the Commonwealth, an employer may be subject to a fine of USD50,000 for a first offense and USD100,000 for a subsequent offense.
  • Individuals who allege that they have suffered discrimination in employment may now bring a civil suit to recover damages. Punitive damages are available up to the general Virginia statutory limit of USD350,000.
  • In contrast to federal law, general compensatory damages are recoverable under Virginia law without any statutory limit.
  • Successful plaintiffs may recover attorney’s fees and costs, which may be substantial.
  • Employees may recover full damages where a discriminatory factor is a motivating factor for any employment practice, even though other factors also motivate the practice. This is a much broader remedy than federal law, which limits recovery in such “mixed motive” cases.

In 2020, the Virginia Wage Payment Act was amended to provide for a private right of action. The law generally requires that: (i) all wages due to an employee should be paid on time; (ii) nothing other than tax payments may be withheld from wages without the employee’s written and signed permission; (iii) no forfeiture may be imposed except on an executive employee; and (iv) the last wages due an employee must be paid, after termination, on the next regularly scheduled payday. None of this is new.

What is new is that Virginia law now allows an employee a private right of action to sue for unpaid wages – “wage theft”. A successful employee may be awarded unpaid wages plus double damages as liquidated damages, or treble damages if the violation was knowing. Attorney's fees and costs may be awarded to the successful employee.

Although Virginia law generally does not afford any right to a class action, the 2020 amendments to the wage payment law allows employees and former employees to sue collectively, in the same manner as a collective action under the federal Fair Labor Standards Act.

Effective July 1, 2020, Virginia enacted a general whistle-blower protection act. It creates a private right of action in favor of any employee who has been discharged, disciplined, threatened, penalized or discriminated against because that person or a person acting on behalf of the employee in good faith:

  • reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
  • is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
  • refuses to engage in a criminal act that would subject the employee to criminal liability;
  • refuses an employer's order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
  • provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

A successful claimant may recover compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorney’s fees and costs. The statute does not authorize disclosure of privileged information or confidential information established by law (or the common law), and does not protect the knowing or reckless disclosure of false information.

This year Virginia enacted anti-retaliation provisions for a number of other employee-protection statutes:

  • discrimination and harassment matters under the Virginia Values Act/Virginia Human Rights Act now include an anti-retaliation provision (see 4.3 Discrimination, Harassment, and Retaliation Issues);
  • wage payment matters under the Virginia Wage Payment Act now contain an express anti-retaliation provision (see 4.3Discrimination, Harassment, and Retaliation Issues);
  • Virginia has created an express anti-retaliation private cause of action for reporting any noncompliance with the “employee/independent contractor” provisions of the law (see 2.1 Defining and Understanding the Relationship);
  • a new and separate Virginia statute makes it unlawful for an employer to retaliate against an employee who has discussed or disclosed information relating to wages and compensation (except for those employees who administer wage and compensation matters for the company); this does not create a private right of action, but does impose civil penalties of USD100 per violation.

Most Virginia employers have already incorporated the lessons and language from the "BLM" and "Me Too" movements into employee and managerial training courses. Over the past two years, more employers are also requiring employees and managers to undergo training more broadly in the benefits of diversity in the workplace, not strictly for the avoidance of claims under various statutes but to enhance employee satisfaction, corporate loyalty, and civic values.

Virginia law does not permit class action claims.

As of July 1, 2020, collective actions for unpaid wages are permitted under the Virginia Wage Payment Act.

The most common multiple-plaintiff action seen in Virginia is the federal court collective action claim under the federal Fair Labor Standards Act. Such claims are not at all uncommon in Virginia and have been increasing in frequency in recent years.

Virginia courts routinely enforce class action waivers in arbitration agreements between employee and employer.

Virginia courts are familiar with, and routinely award, the panoply of damages available under the federal anti-discrimination laws. This relief, and more, is now available under Virginia state law for the same conduct.

Punitive damages are allowed in claims under the federal anti-discrimination laws. Under Title VII of the federal Civil Rights Act, as well as under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act (GINA), the total of compensatory and punitive damages is subject to a dollar-amount limitation. For the largest employers, those with more than 500 employees, this limit on combined compensatory and punitive damages is USD300,000. For employers with 15 to 100 employees, the limit is USD50,000. Attorney’s fee awards, court costs, back pay, and front pay are not subject to these caps.

Some federal anti-discrimination statutes – notably the Age Discrimination in Employment Act, the Equal Pay Act, the Fair Labor Standards Act, and the anti-retaliation provisions of the lactational area provisions of the Affordable Care Act – do not permit the award of compensatory damages for emotional distress, or punitive damages. However, those statutes routinely permit the assessment of back pay; in such cases, litigants are somewhat more likely to see an award of front pay, and in cases of wilful violation, double damages may be awarded as liquidated damages.

Essentially all federal anti-discrimination and employment law statutes permit the prevailing plaintiff (ie, the employee or former employee) to recover her or his attorney’s fee from an unsuccessful employer. In practice, and as a matter of US Supreme Court direction, awards of fees in favour of successful employer/defendants are extraordinarily uncommon.

Effective July 1, 2020, Virginia law make even more relief available under Virginia-law claims for discrimination, harassment, and retaliation than is available under federal law. There are no dollar-amount limits on compensatory damage claims under the new Act, and punitive damages are subject to a USD350,000 limit. See 6.2Discrimination, Harassment, and Retaliation Issues.

In claims for breach of contract under Virginia law, only demonstrable economic damages are available. No punitive damages may be awarded for breach of contract, even if the breach was made in bad faith. No emotional distress or similar general damages may be awarded. While a duty of good faith and fair dealing is implied in most Virginia contracts, that principle has not been extended to the employment law context. In contract cases, however, the parties may include a provision in the contract that shifts attorney’s fees, and permits the prevailing party to recover its attorney’s fees from the unsuccessful party.

Attorney’s fee awards under Virginia contract law are very different from federal statutory fee awards in a number of important particulars. Fee requests under Virginia contracts must be documented with the same rigor as fee requests under federal anti-discrimination statutes. However, federal courts will often award only a portion of the fees demanded by the prevailing employment discrimination plaintiff; it is commonplace to reduce fees for “billing judgment”, unsuccessful unrelated claims, overbilling, lack of success on related claims, and a host of other factors.

Further, Virginia courts (to date, largely in contract cases) generally will award fully compensatory fees regardless of the level of success obtained. In one recent case, the Virginia Supreme Court declined to intervene when a contract-claim defendant, who prevailed on two of the three claims asserted and lost a jury verdict for one dollar on the third claim, was ordered to pay the opponent’s fees in excess of USD700,000. Under the federal discrimination statutes, in contrast, the degree of success is supposed to be the most important single factor in determining an appropriate fee award, and federal courts routinely modify fee requests based on this factor. We do not know whether Virginia courts will follow federal precedent when awarding attorney’s fees under the Virginia Values Act.

Virginia employers should also be aware of the Virginia Civil Conspiracy statute, a powerful tool against employees who have engaged in malicious action, concerted with others, to injure an employer’s business. This statute is often invoked in cases where a number of employees agree together to leave a business and begin a competing business. An employer whose business or property is injured by a conspiracy of two or more persons may sue not only for injunctive relief (such as return of purloined company documents), but also for treble the actual damages incurred. The statute also authorizes a prevailing plaintiff to recover all reasonable attorney’s fees and costs incurred.

Kaufman & Canoles, P.C.

150 West Main Street
Post Office Box 3037
Norfolk
Virginia 23514
USA

+1 (757) 624 3000

+1 (888) 360 9092

www.kaufcan.com
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Kaufman & Canoles is a business-oriented law firm celebrating over a century of operations. Practicing from eight offices across the Commonwealth of Virginia, the firm has one of the largest labor and employment law teams in the state, including three former chairs of the Virginia Bar Association Section on Labor Relations and Employment Law. The team works closely with the firm's employee benefits group and its business and transactional attorneys, first and foremost to counsel clients to prevent problems. Experienced first-chair litigators and jury trial attorneys – a vanishing breed in modern employment law – stand ready to assist at all phases of the process, from administrative agencies through the appellate courts and Supreme Court. The firm represents employment law clients of all sizes and in every industry, from massive shipyards to mid-sized financial institutions and to local government and quasi-governmental agencies. True to the firm’s founding principles, it represents employers – and only employers.

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