When an employer plans to dismiss an employee, it is important to ensure that the discharge does not violate any of the employee’s rights before following through with it. Otherwise, it could be considered wrongful termination. Because of the at-will employment doctrine, the company is free to part ways with the worker without needing to provide a reason or advance notice in most cases. However, there are state and federal exceptions to the law, and if an employee can prove that one of these applies, the company may be the focus of a legal action. Understanding when an exception may be relevant can be helpful to employers when planning a layoff or dismissal.
At-will Employment in Virginia
Because Virginia has an employment-at-will statute, most jobs in the state do not allow employees to dispute a discharge. Therefore, at-will employees are subject to the needs of the company and could be let go at any time with no advance notice.
Wrongful Termination in Virginia
The state recognizes a few exceptions to at-will employment, and violating one of these constitutes wrongful termination. For example, an employer may not disregard the terms of an employment contract or retaliate against an employee who has reported unsafe work conditions to the U.S. Occupational Safety and Health Administration. There are federal and state laws that prevent employees from being fired because of discrimination, as well.
Breach of Contract: In Virginia, an employment contract must specifically address the conditions that may lead to termination. Many companies have employee manuals or policies that outline what activities are grounds for dismissal. While these may seem to imply that there is a contract, they do not typically constitute an exception to at-will employment, so acting contrary to these is not a breach of contract.
Unions often have collective bargaining agreements that prevent employees who are members from being terminated without cause. These usually describe the circumstances that could result in discharge, but they generally also provide employees with opportunities to correct problems and avoid losing their jobs.
Some companies do negotiate contracts with individual employees, and these frequently have terms dealing with termination. These are rarely offered to low-level workers. Instead, they tend to be offered to executives.
Discrimination: People who work for companies with fewer than 15 employees are not protected under the federal law that prohibits termination based on citizenship status, national origin, color, race, sex, genetic information, religion, disability or pregnancy. However, Virginia’s antidiscrimination law has different terms. Companies that employ between six and 15 workers cannot terminate employees for any of the above protected traits except citizenship status, and Virginia does not allow discrimination based on marital status.
Retaliation: Retaliation is a punitive action against an employee who has performed a legally protected activity, and under most circumstances, it is considered a wrongful termination. For example, an employer cannot fire a worker who registers a safety violation complaint with OSHA or files for workers’ compensation benefits. Employees are also acting within their rights if they protest a violation of the state’s minimum wage or child labor laws, among others.
Public Policy: Sometimes employees are granted rights based on Virginia’s public policies. These refer to state laws that protect public interests, such as safety, health, property rights and personal freedoms. Examples of protected actions based on public policy include reporting for jury duty or refusing to engage in illegal activity.
Another example involves Virginia’s securities laws, which provide stockholders with the right to vote on corporate matters at meetings. An employer cannot terminate an employee for exercising this right or for protesting the violation of the right.
Retaliatory discharge is not treated the same as wrongful discharge by the Virginia Supreme Court. When claims are based on policies that are implied by a statute rather than specifically stated, the Court is less likely to rule in the favor of the employee who files the action.
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