Employment Law Chronicle for Virginia & the District of Columbia

I often represent clients on claims that an employer’s business interests were harmed by the disloyal or otherwise unlawful conduct of a former employee. Typically, these employer lawsuits allege breach of contract, breach of the duty of loyalty, misappropriation of trade secrets, conspiracy, tortious interference and related claims. Below are some questions and answers designed to present these concepts in general terms.

Question: What is the common law fiduciary duty of loyalty?

Continue reading "Virginia Employment Law: Employee Breach of Contract, Duty of Loyalty and Misappropriation of Trade Secrets" »

Employment lawyers in D.C. and Virginia who are tracking progress of the American Law Institute's Restatement of Employment Law, should read this update from the Virginia Lawyers Weekly. According to article, while progress is ongoing -- amidst expected controversy between plaintiff and management-side employment lawyers -- an Employment Law Restatement is at least three-to-four years away.

As an employment lawyer, several times a week, I am asked whether an employer can fire an employee without a good reason. In the District of Columbia and Virginia, the answer is usually yes. That is because employment in D.C. and Virginia is “at-will” unless a contract or statute states otherwise, or unless a public policy exception exists. Employment “at-will” means that the employer or employee may terminate the employment relationship at any time, for any lawful reason, or for no reason at all.

Courts in Virginia and the District of Columbia have carved out “narrow” exceptions to the at-will doctrine for claims of "wrongful termination" or "wrongful discharge" in violation of public policy. The highest courts of the respective jurisdictions have expressed the public policy exception to the at-will doctrine as follows:

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The ADA requires covered employers to make a reasonable accommodation to the known disability of a qualified applicant or employee if the accommodation would not impose an "undue hardship" on the employer's business.

In general, undue hardship means an action that requires significant difficulty or expense, when considered in light of these factors:

(i) the nature and cost of the accommodation needed under the ADA;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered
entity.

The ADA protects employees or applicants who satisfy the test of being a "qualified individual with a disability," which means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. If an employee or applicant satisfies the definition of being a qualified individual with a disability, then the employer must provide a reasonable accommodation unless doing so would impose an undue hardship on the employer's operations.

Continue reading "Disabilities Discrimination: Who is Covered by the Americans With Disabilities Act (ADA)?" »

Employers in Virginia, the District of Columbia and nationwide need to ensure that testing and selection procedures used to screen job applicants or existing employees for advancement or other opportunities do not have a discriminatory impact on the basis of race, sex, age, disability or other protected category. In recent years, testing and selection criteria have been a prime target of the Equal Employment Opportunity Commission's (EEOC) enforcement efforts. For example, in November 2006, the Eighth Circuit affirmed a $3 million judgment in EEOC v. Dial Corp resulting from a strength test that appeared to have excluded women from entry-level jobs. In 2007, Ford Motor Company, two of its affiliates, and the UAW entered into a $1.6 million settlement stemming from cognitive apprenticeship tests that appeared to have excluded African Americans. That settlement came on the heels of an $8.5 million settlement in a related case.

In the wake of these multi-million dollar judgments and settlements, the EEOC issued a fact sheet to assist employers in understanding how to avoid employment discrimination claims based on tests and other selection criteria.

Continue reading "EEOC Best Practices: How to Test Employees Without Violating Discrimination Laws" »