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.

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.

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.

Here is the text of the Virginia law prohibiting former employers from blacklisting former employees through false statements to prospective employers:

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.

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?