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How to legally fire an employee in Virginia

  • By: lipplaw
    Published: June 27, 2023
image of temination of employment

Virginia employment is generally “at-will,” unless the employee has an employment agreement with the employer.

At-will employment means that an employee can be terminated for any reason or no reason, provided that the reason is lawful and the termination can occur with or without notice or cause. Employees are likewise free to resign at any time, with or without notice.

What is the public policy exception to employment at will in VA?

Virginia courts have recognized a wrongful discharge action in 3 instances: (1) the termination violates Virginia’s public policy, which prevents an employee from exercising a right protected under Virginia law; (2) the public policy is explicitly stated in a Virginia statute, and the employee a member of the class of individuals protected by the public policy; and (3) the termination is related to the employee’s refusal to engage in criminal activity.

Virginia employers can only be sued for wrongful discharge (also called wrongful termination) under limited circumstances.

Generally, employment in Virginia is at-will. However, there are three limited exceptions to at-will employment recognized by Virginia courts, deriving from a 1985 Virginia case, Bowman v. State Bank of Keysville, 229 Va. 534 (1985). Public policy claims providing a narrow exception to Virginia’s employment-at-will regime are commonly called Bowman claims.

There are three limited exceptions to Virginia’s employment-at-will doctrine:

  1. The termination violates Virginia public policy, and the employee is prevented from exercising a right that they are entitled to under Virginia law.
  2. A Virginia statute explicitly enumerates a public policy and specifically states that the employee is in the class meant to be covered by the statute’s protection.
  3. An employee is terminated for refusing to participate in criminal activity.

What is wrongful termination under Virginia employment law?

Wrongful termination under Virginia employment law is a termination that violates the law or which is contrary to the public policy of Virginia. Each employer is subject to different employment laws they must follow, varying based on the number of employees, where an employee is physically working, and by industry.

Common claims of wrongful termination pertain to discrimination and retaliation. If an employee falls within a protected class and is treated disparately compared to other employees that don’t fall within the protected class, that could create a claim for discrimination for the employee.

Retaliation is a very common type of employment claim when an employee believes they are wrongfully terminated. This is why it’s important to train your managers not to retaliate against employees that bring concerns to the company about wrongful treatment. The company should take claims of wrongdoing seriously and use their discretion to determine if an investigation is necessary.

Can you fire an employee on leave?

Employers should not terminate employees that are taking leave protected under federal or state law. Job-protected leave can fall under federal law such as the Family Medical Leave Act (FMLA) or for military service members under the Uniformed Services Employment and Reemployment Rights Act (USERRA). There are also state laws that provide job-protected leave that employers should be aware of.

The federal Family Medical Leave Act (FMLA) applies to employers with 50 or more employees, to employees that have been working for an employer for at least 12 months, have worked 1,250 hours or more for the employer, and are working at a job location that has 50 or more employees within a 75 mile radius. FMLA provides employees with unpaid, job-protected leave for up to 12 weeks.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to employers of all sizes, regardless of the number of employees, and provides service members who leave their job for military service with certain benefits and protections while on leave and upon their return. The requirements of USERRA can be highly technical, so consulting with an experienced employment attorney is helpful to ensure proper legal compliance.

In addition to federal laws that may apply to your company, there may be state laws that provide employees with job-protected leave. For example, the District of Columbia has its own version of FMLA, which applies to employers with 20+ employees and provides up to 16 weeks of family leave and up to 16 weeks of medical leave every 2 years.

What is a breach of an employment contract?

An employment contract is breached when one party materially disobeys or fails to perform an obligation under the contract. Common employment contract breaches pertain to non-compete clauses, non-solicitation clauses, confidentiality clauses, and payments of bonuses.

It is common in the employment law context to see employees that are accused of breaching the restrictive covenants in their employment contracts, such as non-competes, non-solicitation clauses, and confidentiality clauses.

For employers, it is common to see an alleged breach of contract over bonuses that the employee does not get paid when they leave the company.

Do I have to hold my employee’s job while they are injured at work in Virginia?

No, you do not have to hold your employee’s job while they are injured at work in Virginia, unless they are taking medical leave under the Family Medical Leave Act (FMLA), which provides job protection. The Virginia Workers’ Compensation Act does not require employers to hold a job open for a worker injured on the job.

The statute that controls workplace injury insurance is the Virginia Workers’ Compensation Act. Each Virginia employer is required to carry workers’ compensation insurance.

If a Virginia employee is injured on the job, and they qualify for Family Medical Leave Act (FMLA) leave, then an employer should comply with FMLA requirements to place the employee in the same or an equivalent position upon their return to work.

Are employers required to send termination letters?

No, generally, employers are not required to send termination letters. In certain circumstances, such as where an employer is closing a large worksite, the federal WARN Act requires employers with 100+ employees to follow certain notice requirements, and employers providing health insurance to their employees may be subject to COBRA notice requirements.

While sending termination letters is an HR best practice, they are not legally required. Termination letters are helpful to keep a record of the date of termination and what information was communicated to the former employee in writing.

When a large company with 100+ employees is shutting down a large worksite containing 50+ employees or conducting a mass layoff impacting 50+ employees and one-third of the company’s workforce, then the federal Worker Adjustment and Retraining Notification Act (WARN Act) requires employers to give affected employees 60 days’ written notice of the upcoming termination.

If an employer provides health benefits to its employees, it may have to provide written notices to terminated employees informing them of their legal right to stay on the employer’s plan and how to accomplish that.

The federal COBRA (Continuation of Health Coverage) statute applies to companies with 20+ employees, and many states have mini-COBRA statutes with different requirements. You will want to consult with an employment attorney to understand what COBRA requirements apply to your company.

How long does an employer have to pay you after termination in Virginia?

Virginia employers are required to pay a terminated employee their last paycheck at the next regular pay period after the termination. Employers will also want to pay out any accrued, unused PTO if their policy dictates this and payout owed bonuses in accordance with the employer’s policies or any employment contract.

Some employers are tempted to deduct amounts owed for unreturned or lost equipment or other employer property from the last paycheck, but this is illegal unless the employee has given their written contemporaneous consent for such a deduction.

Another consideration for the final paycheck is that the Fair Labor Standards Act (FLSA) allows salaried employees to be paid for the actual hours worked during the first and last weeks of their employment.

Employers will finally want to pay employees for any owed PTO or bonuses that they are entitled to under the employer’s discretionary policies.

What can an employee do if they believe they were wrongfully terminated in Virginia?

If an employee believes they have been wrongfully terminated and were performing the majority of their work in Virginia, they may be able to bring a charge of discrimination or a lawsuit against their former employer to recover damages to make themselves whole. An employee can also engage in a severance negotiation if the employee does not want to take formal legal action at this time.

Legal actions such as filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) for discriminatory practices, or filing a lawsuit in court, can allow an employee to recover damages to compensate for the harm caused by the wrongful termination, which can include front pay, back pay, attorneys’ fees, and other things to make the employee whole.

It is important to consult with an employment attorney before taking any action to see if you have a case and to understand the relevant statutes of limitation for filing a charge or lawsuit.

Many employees do not wish to sue their former employer and can consider engaging in a severance negotiation instead. It is still important to understand what legal claims an employee may have against their employer to inform them of the best course of action in engaging with the former employer.

Contact experienced employment lawyers at The Lipp Law Firm

When it is necessary to terminate an employee, it’s important to conduct the termination legally and in a way that follows best employment law practices. In order to properly conduct your employment termination, you will want to seek the counsel of an experienced employment law attorney licensed to practice law in your state.

The Lipp Law Firm has experienced employment law attorneys licensed to practice in Washington, DC, Maryland, and Virginia. Schedule a consultation today to get the legal advice you need.

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
Based on her successful employment litigation practice...Read More