Employment Law in Virginia

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Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire or promote the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with or without reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, so long as it's true and isn't provided to maliciously harm the employee. An employer who provides false information that disparages the employee may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

The courts of Virginia follow an "employment-at-will" doctrine. At-will employees may be terminated for any reason, so long as it is not illegal. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract. However, in Virginia, the mere fact that an employment contract is in writing is not sufficient to overcome the presumption that the employment is at-will. To overcome this presumption, an employment contract must directly limit, in a meaningful and special way, the employer's right to terminate the employee without cause. In other words, the employer has to unequivocally indicate that it will not terminate the employee except under specific circumstances.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

The laws regarding an employer's duties and responsibilities arising under an employee handbook are complex, and a licensed attorney should be contacted to review individual circumstances.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain to a state or federal agency about an unsafe work environment and be protected against employer reprisals.

In Virginia, the Workers' Health and Safety Division of the Virginia Workers' Compensation Commission provides assistance with workplace safety and health issues to employers, employees, and workers' compensation insurance carriers and policyholders.

Workplace Injury

The Virginia Workers' Compensation Commission is the state agency that administers the Virginia Workers' Compensation Act. The Act provides a no-fault remedy for workers who are injured in their employment. "No-fault" simply means that the injured worker does not have to prove that their work injury was someone else's fault in order to receive workers' compensation benefits for an on-the-job injury. However, the worker must establish the conditions for compensability set out in the Act before he or she can recover benefits.

Virginia workers' compensation laws are designed to compensate employees, who have been injured or killed in work related accidents, regardless of fault and without the need for litigation, according to a fixed monetary scheme. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

The amount of compensation paid to an employee depends upon the classification of his or her disability:

• Compensation for total incapacity is paid weekly and is equal to 66 2/3% of the employee's average weekly wages. The minimum compensation is not less than 25% and the maximum compensation is not more than 100% of the average weekly wage earned in Virginia. The compensation on account of total and permanent incapacity continues for the lifetime of the injured employee without limit as to the total amount.
• Compensation for partial incapacity is paid weekly and is equal to 66 2/3% of the difference between an employee's weekly wages before the injury and the average weekly wages which the employee is able to earn thereafter. The compensation paid must not be more than 100% of the average weekly wage earned in Virginia.

Virginia's workers' compensation system is premised on a trade-off between employees and employers. Employees promptly receive workers' compensation benefits for on-the-job injuries, and the limited workers' compensation benefits are the exclusive remedy against the employer, even when the employer was negligent.

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment" which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct--an employer makes sexual advances or statements
• "Quid pro quo"--job-related benefits are offered in exchange for sexual conduct
• Hostile work environment--an employer maintains an overly sexual work environment

Because the laws determining what conduct, or pattern of conduct, constitutes actionable sexual harassment are complex, a licensed attorney should be contacted to review individual circumstances.

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

Under federal law, eligible employees are allowed to take up to 12 weeks of unpaid medical leave, with continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers that had 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An employer may not take any adverse action against an employee for the taking FMLA leave; however, any personnel action/decision that would have happened if the employee had continued in a work status may happen while the employee is on FMLA leave.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Virginia's unemployment compensation program is administered by the state and provides monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits. Virginia unemployment benefits provide temporary compensation to those workers meeting the eligibility requirements of Virginia law.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Related Web Links:

- Virginia Department of Labor and Industry
- Employment Law for Employees message boards for more help