In addition to setting restrictions on the amount of employee pay that can be garnished, the Virginia Wage Garnishment Law makes it illegal to fire an employee for being subjected to garnishment for a single debt.
]]>The Virginia Wage Payment Law identifies requirements and restrictions on employee pay. Some of the topics covered by the wage payment law include the timing of employee pay periods; medium of wage payment; legality of wage withholdings, deductions or forfeitures; requirements for earnings statements; and payment of wages upon termination.
Like the federal Equal Pay Act and Title VII, the Virginia Equal Pay Act prohibits employers from paying males and females in the same establishment different wages for substantially similar work. As set forth below, the Virginia Equal Pay Act covers the limited group of employers who are not covered by the federal Equal Pay Act.
]]> VA Code § 40.1-28.6. Equal pay irrespective of sex.No employer having employees shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.]]>For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this section shall be deemed to be unpaid wages or unpaid overtime compensation and the employee whose wages have been wrongfully withheld in violation of this section shall have a right of action therefor to recover damages to the extent of two times the amount of wages so withheld.
This section shall not apply to employers covered by the Fair Labor Standards Act of 1938 as amended. Every action under this section shall be brought within two years next after the right to bring the same shall have accrued; provided, however, that nothing herein shall be construed to give rise to a cause of action for work performed prior to July 1, 1974.
Below is the Virginia whistleblower law prohibiting wrongful termination or other discrimination of employees who report or testify about safety or health complaints:
VA Code § 40.1-51.2:1. Discrimination against employee for exercising rights prohibited.
No person shall discharge or in any way discriminate against an employee because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.
Section 40.1-51.2:2 of the Virginia Code provides the procedures and remedies for Virginia safety or health whistleblower claims.
]]>As set forth below, in Virginia, employers are limited in their ability to discharge employees for excessive absences due to illnesses or injuries that are compensable under Virginia's workers' compensation law.
]]> VA Code § 40.1-27.1. Discharge of employee for absence due to work-related injury prohibited.It shall be an unfair employment practice for an employer who has established an employment policy of discharging employees who are absent from work for a specified number of days to include in the computation of an employee's work absence record any day that such employee is absent from work due to a compensable absence under Title 65.2; provided, that such compensable absences can be calculated into an employee's work record for purposes of discharge after all steps of the excessive absenteeism policy have been exhausted. An employer shall not be held in violation of this section if the employee's absence exceeds six months or if the employer's circumstances have changed during such employee's absence so as to make it impossible or unreasonable not to discharge such employee.]]>
Virginia law permits former employers to furnish information to prospective or current employers about a former employee if the former employer is not acting in bad faith. If, however, a former employer discloses knowingly false information, the employer will be subject to liability with the potential for punitive damages.
]]> VA Code § 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.A. Any employer who, upon request by a person's prospective or current employer, furnishes information about that person's professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.]]>B. In a civil action brought against an employer for disclosing the information described in subsection A, if the trier of fact determines the employer acted in bad faith, punitive damages may be awarded, as provided by § 8.01-38.1.
C. As used in this section, the following words and phrases shall have the following meanings:
"Employee" means any person, paid or unpaid, in the service of an employer.
"Employer" means any person, firm or corporation, including the Commonwealth of Virginia and its political subdivisions, and their agents, who has one or more employees or individuals performing services under any contract of hire or service, express or implied, oral or written.
"Information" includes, but is not limited to, facts, data and opinions.
"Job performance" includes, but is not limited to, ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions.
"Professional conduct" includes, but is not limited to, the ethical standards which govern the employee's profession, or lawful conduct which is expected of the employee by the employer.
"Prospective employer" means any employer who is considering a person for employment.
Here is the text of the Virginia law prohibiting former employers from blacklisting former employees through false statements to prospective employers:
]]> VA Code § 40.1-27. Preventing Employment by Others of Former EmployeeNo person doing business in this Commonwealth, or any agent or attorney of such person after having discharged any employee from the service of such person or after any employee shall have voluntarily left the service of such person shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such discharged employee or such employee who has voluntarily left from obtaining employment with any other person.]]>For violation of this section the offender shall be guilty of a misdemeanor and shall, on conviction thereof, be fined not less than $100 nor more than $500.
But this section shall not be construed as prohibiting any person from giving on application for any other person a truthful statement of the reason for such discharge, or a truthful statement concerning the character, industry and ability of such person who has voluntarily left.
Title VII prohibits employment discrimination on the basis of race, color, national origin, religion or sex.
Here are answers to some frequently asked questions about Title VII:
WHAT IS TITLE VII?
Title VII is a federal law that prohibits employers and other covered entities from discriminating against an employee or job applicant because of the person's race, color, religion, sex or national origin. The Pregnancy Discrimination Act is incorporated into Title VII. Title VII also protects against retaliation and requires employers to make reasonable accommodations for religion.
WHAT TYPE OF EMPLOYER ACTS ARE ILLEGAL UNDER TITLE VII?
Title VII protects employees and applicants from discrimination in all terms, conditions or privileges of employment. For example, it is illegal to engage in sexual harassment or to harass an employee based on any other protected category, such as race, religion, or national origin. It is also illegal to discriminate in hiring, job advertisements, recruitment practices, tests, assignments, training opportunities, promotions, pay, benefits, discipline, discharge, employment referrals, breaks, leave, perks, or other terms, conditions or privileges of employment.
(a) Employer practices.It shall be an unlawful employment practice for an employer -(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
(b) Employment agency practices.
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin.(c) Labor organization practices.
It shall be an unlawful employment practice for a labor organization-(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s race, color, religion, sex, or national origin; or(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.
Pregnancy Discrimination
This Pregnancy Discrimination Act of 1978 (PDA) amends Title VII to expressly prohibit employment discrimination on the basis of pregnancy, childbirth, or a related medical condition as follows:
The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . ..
WHICH ENTITIES MUST COMPLY WITH TITLE VII?
In general, Title VII applies to federal, state, local agencies and private employers with 15 or more employees; employment agencies; and labor organizations. Title VII generally does not apply to Indian Tribes, private-membership clubs, or religious organizations.
WHO IS PROTECTED BY TITLE VII?
Title VII protects employees and applicants of covered entities, including citizens of the United States employed in foreign countries by covered entities. Title VII does not cover independent contractors or certain political officials.
HOW DOES AN EMPLOYEE OR APPLICANT FILE A TITLE VII CLAIM?
In general, a charge must be filed with the Equal Employment Opportunity Commission (“EEOC”) within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e) (1). Under certain circumstances in “deferral” jurisdictions, the time period may be extended to allow an EEOC charge to be filed: (a) within 300 days after the alleged unlawful employment practice occurred; or (b) within 30 days after the individual receives notice that the state or local agency has terminated the proceedings under the State or local law, whichever is earlier.
Federal Employees and Applicants
While federal employees enjoy rights similar to non-federal employees, the procedures for enforcing such rights differ. Claims against the Federal Government must be initiated with the appropriate EEO Counselor within 45 days of the employment practice.
HOW DOES AN EMPLOYEE OR APPLICANT PROVE EMPLOYMENT DISCRIMINATION UNDER TITLE VII?
The main theories for Title VII claims are disparate treatment, disparate impact, denial of reasonable accommodation, and retaliation.
Disparate Treatment
In a “disparate treatment” claim, the employee or applicant (plaintiff) alleges that he or she suffered intentional discrimination because of the plaintiff’s protected status (i.e., race, color, religion, sex or national origin).
Disparate (Adverse) Impact
A disparate impact claim alleges that an employer’s neutral policy or practice, which is non-discriminatory on its face, adversely impacts a protected class.
Section 703, 42 U.S.C. § 2000e-2(k) (1) (A) explains the burden of proof in disparate impact cases as follows:
An unlawful employment practice based on disparate impact is established under this subchapter only if-(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or(ii) the complaining party makes [a] demonstration. . . with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
Denial of Reasonable Accommodation
An employer who fails to provide a reasonable accommodation for an employee’s religious observances or practices is subject to Title VII liability unless the reasonable accommodation would impose an undue hardship on the employer’s business.
Retaliation
To establish a retaliation claim under Title VII, the employee must show that he or she suffered an adverse action that occurred because the employee “opposed” an unlawful employment practice or “participated” in an employment discrimination investigation or proceeding.
Section 704, 42 U.S.C. § 2000e-3(a) provides as follows:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency . . . to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
WHAT MONEY AND OTHER RELIEF CAN AN EMPLOYEE RECOVER UNDER TITLE VII?
In general, an employee who prevails on a Title VII employment discrimination claim is entitled to be made whole for the employment discrimination. For example, a person who prevails in an intentional discrimination case may be entitled to an injunction to stop the employer from continuing to discriminate; reinstatement (with or without back pay); front pay; other equitable relief; compensatory damages to compensate the employee for out-of-pocket pecuniary losses and emotional harm; punitive damages designed as punishment; attorney’s fees; expert fees; and costs.
There are several limits on potential damages in Title VII cases. In addition to monetary caps on damage awards, punitive damages are available only if the employee demonstrates that the employer acted with malice or reckless indifference to the employee's federally protected rights.
Punitive damages may not be awarded against a federal, state or local government, government agency, or political subdivision.
In "mixed-motive" cases, where the employee proves a Title VII violation, but the employer shows that it would have taken the same action even in the absence of the illegal motivating factor, damages are limited to declaratory relief, injunctive relief, costs, and attorney’s fees. Reinstatement, hiring, promotion and monetary payments are not available to prevailing plaintiffs in mixed-motive cases.
IMPORTANT:
This article is not and should not be construed as legal advice. Under no circumstances should anything in this article be used as a substitute for obtaining legal advice for a specific legal question
If you need a lawyer to advise or represent you or your company in a Title VII or other employment discrimination lawsuit, you are welcome to call Searcy Law Offices, LLC at 703-644-4122 to learn how we can help you.
Any dispute arising out of or in connection with any aspect of my employment by the Company, or termination thereof, including by way of example but not limitation, disputes concerning alleged civil rights violations, breach of contract or tort, shall be exclusively subject to review by the Grievance Review Board. Any decision of the Review Board shall be binding to both parties, and enforceable in the circuit court.
The statute of limitations waiver read:
I further recognize that if employed by the company, I agree, in partial consideration for my employment, that I shall not commence any action or other legal proceeding relating to my employment or the termination thereof more than six months after the termination of such employment and agree to waive any statute of limitations to the contrary.
Upon finding that the employees did not knowingly, intelligently, and voluntarily waiver their rights to bring employment-related claims in a judicial forum, the Court held that the statute of limitations waivers were similarly invalid.
Alonso v. Huron Valley Ambulance, Inc., No. 09-1812 (6th Cir., Apr. 26, 2010).
For more information about enforceable employee arbitration agreements in Virginia or the District of Columbia, contact Searcy Law Offices at 703-644-4122.
]]>Plaintiffs allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men. Plaintiffs contend that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.
The complete, 137-page opinion is here: Dukes v. Wal-Mart Stores.
]]>Central to the dispute was employer Old Dominion's claim that it fired truck driver Deborah Merritt because Ms. Merritt had failed a physical ability test ("PAT"), which was administered because she had suffered an ankle injury. According to Old Dominion, the PAT demonstrated that Ms. Merritt was unable to perform the physical requirements of her job. As reflected in this quote from the opinion, the PAT was problematic:
According to Merritt, the tasks with which she had problems were unrelated to her ankle injury. For example, on one portion of the PAT, Merritt was unable to place a box of weights on an overhead shelf simply because the shelf was too high for her (at barely over five feet, one inch tall) to reach. On another part of the PAT, Merritt had difficulty walking backward pulling a cable due to people bumping into her in a crowded hallway.
Problems with the test as a measurement of Ms. Merritt's physical ability to perform the job, combined with other evidence suggesting sex-based animus, led a panel of the 4th Circuit to conclude that "the record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot." Early in the opinion, the panel noted that of the 3,100 drivers employed by Old Dominion in the same position as Ms. Merritt, only six were women.
Putting a fine point on the importance of this decision, in a concurring opinion, Judge Davis wrote:
I particularly appreciate the majority opinion’s reminder that, in intentional discrimination cases, we should not examine the trees so minutely that we lose sight of the forest. The ultimate question in this case, as in all intentional discrimination cases, is not whether the McDonnell Douglas test is satisfied. It is instead, as the majority opinion teaches, whether the plaintiff has generated a genuine dispute of material fact that she is the victim of intentional discrimination, notwithstanding facially plausible reasons offered by the employer for its adverse employment action. The proof scheme is but a useful tool to help identify and resolve that real issue.
Virginia employment lawyers should take note of this decision and other recent decisions in which the 4th Circuit has reversed summary judgment and reinstated plaintiffs' claims.
Appeal from the United States District Court for the Western District of Virginia, Norman K. Moon, District Judge.
Decided: April 9, 2010, Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Reversed
Click on the published opinion.
Employers in Virginia or the District of Columbia who have questions about how to determine whether a worker is an employee or an independent contractor are welcome to call Searcy Law Offices, LLC at 703-644-4122 for a consultation.
]]>For more information about the District of Columbia's paid sick leave law, see my prior posts here and here.
]]>Employers are required to post the notice, which describes federal employment discrimination laws prohibiting discrimination on the basis of race, color, sex, national origin, religion, age, equal pay, disability and genetic information. Copies of the EEOC poster can be requested through the EEOC's website.
]]>Question: What is the common law fiduciary duty of loyalty?
]]> Answer: In Virginia, employees owe employers a duty of loyalty simply by virtue of the employment relationship. Whether certain conduct by an employee constitutes a breach of the duty of loyalty depends on the specific facts and circumstances. Nevertheless, Virginia courts have identified the following conduct as constituting a clear breach of the duty of loyalty:- misappropriating trade secrets during or after employment;Therefore, if an employee engages in any of these actions, the employer has a potential claim. It is important to note that the acts listed are some but not all of the acts that may constitute a breach of the employee’s duty of loyalty.- misusing confidential information during or after employment;
- soliciting an employer’s clients before employment ends;
- soliciting an employer’s employees before employment ends; or
- competing with an employer before employment ends.
Question: In addition to the duty of loyalty, what other obligations does an employee have to not harm the employer’s legitimate business interests?
Answer: Employees are bound by the terms of their employment agreements (if any) and Virginia laws that apply generally to employment or business relationships.
A typical employment agreement will include provisions governing the employer’s intellectual property rights, confidentiality and non-disclosure of proprietary information, and various restrictive covenants such as non-compete and non-solicitation provisions. Assuming that the provisions comply with Virginia law, employees are bound by them. Because Virginia courts generally “disfavor” restrictive covenants, it is important for employers to have such covenants reviewed by an experienced employment lawyer.
Employees must also comply with all other applicable Virginia laws. For example, Virginia’s Trade Secret Act expressly prohibits misappropriation of trade secrets. Virginia’s conspiracy statute prohibits employees from conspiring with another person or entity to harm the former employer’s business. Similarly, employees may not interfere, unlawfully, with the former employer’s business contracts or business relationships.
Question: Can an employee who is planning to leave make plans to compete with his employer?
Answer: Ordinarily, an employee may make preparations to resign if the preparations do not (a) breach the duty of loyalty, (b) violate a non-compete or other contract terms, or (c) violate an applicable law. The right to plan is not absolute. It must be balanced against the importance and fairness that attaches to the employer-employee relationship.
The information in this article is not intended to and should not be used as legal advice for any specific situation. If you have questions about a specific case or issue, contact Searcy Law Offices, LLC at 703-644-4122 in Virginia or 202-393-1443 in the District of Columbia.