Virginia & Washington D.C. Employment Lawyers

Albo & Oblon, LLP is a regional law firm that has extensive experience in employment law.  We handle most aspects of the employment relationship — including hiring, firing, contract disputes, wage and hour disputes (FLSA), and discrimination.

We have compiled the following list of frequently asked questions on employment law.  Skim through the questions and click on any of them that interests you.  This article is intended for preliminary and information purposes only. The facts and circumstances of each case differ, and therefore when considering taking legal action you should strongly consider consulting an attorney who can provide you with legal advice.

The Hiring Process

What kind of relationship generally governs employers and employees?

Most states, including Virginia, and Washington, D.C, follow what is known as the “at-will employment” doctrine. Under this doctrine, individuals employed in such states work “at the will” of the employer, and therefore can be terminated with or without cause (provided the termination is not due to discrimination based upon a prohibited factor as further discussed below). As a result, it is not a violation of law per se for an individual to be denied a promotion or terminated based upon favoritism or personality differences.

Are there other types of employment relationships, and what documents reflect the nature of that relationship?

The other fundamental type of employment relationship is known as employment for a term. In such a situation, the underlying employment relationship provides that the individual is to be employed for a specified term, or period of time. Thus, if an individual’s employment contract states that he or she shall be hired for two years to perform a certain project, as a general matter they cannot be terminated prior to the completion of that term without adequate cause. Written employment contracts, to the extent they exist in a particular case, may very well state whether an individual is an employee at will or employed for a term. A company’s employee manual or handbook may also clarify whether an individual is an employee at will or subject to other protections. One should consult an attorney to review the facts of each particular case to confirm the nature of the underlying employment relationship and attendant rights.

What questions may an employer ask a prospective employee?

Generally, an employer must avoid questions that seek the applicant’s race, color, religion, sex, national origin, age, disability, or health. Such inquiries raise the question of whether a company is basing an employment decision on a prohibited factor. Questions to avoid include:Marital or Family Status Age, Sex, Height, Weight, or Eye/Hair Color, Health, Medical History or Physical Limitations, Citizenship, Economic Status, Availability to Work Religious Holidays (including Saturdays and Sundays), and Criminal Record (unless it is somehow “job related”).

Should employers and employees use a written employment contract?

There are pros and cons to a written employment contract. On the one hand, a contract clarifies expectations. On the other hand, it may serve to defeat the “at-will” employment status and disadvantage one party or the other. For example, if the contract were to simply read, “Employee shall be paid $60,000.00 per year,” rather than “Employee shall be paid a base salary of $2,500.00 bi-monthly, which is $60,000.00 annually,” the employee may argue that the contract is for a term of one year. Under this theory, if the employer were to fire the employee without cause, the employer could be liable to the employee for the total salary.

When must an employer pay “time and a half?”

An employer must pay time and a half for all hours an employee works over 40 per week. There are a number of employees who are exempt from this requirement, however, and a few types of highly-specialized employers that are not covered. Generally, if an employee primarily exercises professional, executive, managerial, or outside sales functions, and is paid a salary (rather than hourly wage) he is exempt from this law and is not entitled to overtime pay. Many employers misclassify their employees, however, and the penalty can be severe.

May an employer demand that all employees submit to a polygraph (lie detector test)?

Generally, no, polygraphs are not mandatory.  However, some sensitive jobs with state or federal government agencies can require a polygraph examination without prior consent.

The Firing Process

Can an employer fire an employee with no “good” reason?

If the employer is the government, the answer is generally “no.” If the employer is a private business, the answer is generally “yes”. Virginia and Washington, D.C. are all “at-will” employment states. This means that, in the absence of a contract or other specific exception, an employee can quit at any time and an employer can fire an employee at any time with limited notice. Of course, this doesn’t apply to employees in “protected categories” such as race, color, religion, sex, national origin, age, or disability if the termination is based on their membership in the protected category. And it doesn’t apply to mass layoffs.

This means, for example, that an employer could fire an employee because he or she didn’t like the “quality” of the employee’s work — even though every person in the world other than the employer would agree that the work quality was excellent. (Of course, if the “stated reason” is proven to be a pretext for discrimination based on a protected category, and is not the “real reason” for the termination, the employee may have a case against the employer for a violation of civil rights).

Must an employer pay an employee “severance pay” or assist the employee is locating a new job?

Generally, an employer need not pay severance absent a contract to the contrary. Some states require an employer to provide “reasonable notice” prior to termination.  Also, certain large employers have severance policies or benefit plans that may apply.

Is this true even if the employer fires the employee for no “good” reason?

Yes.

Should the employer have the employee sign a termination agreement?

Yes, but only if the employee will sign! The agreement should give a specific termination date and reason for the termination. It should also settle such matters as:

  • Health, disability, and life insurance and COBRA notices;
  • Payment of any accrued salary and other forms of compensation, such as stock options and vacation time;
  • Reimbursement for out of pocket expenses;
  • Retirement account;
  • Return of company property; and
  • Closing out all accounts.

The employer should also consider having the employee sign a release of liability for the termination. Certain businesses may also want the employee to sign a “non-compete agreement.” To do either of these, however, the employer must generally pay money to the employee. Failure to do so may make the agreement unenforceable.

Must an employee sign a “termination agreement” or a “non-compete agreement?”

No, employees need not sign such agreements. An employer should consider negotiating for a payment in exchange for the employee’s signature.

Other Employment Questions

What is the federal Family Medical Leave Act?

The Family Medical Leave Act (FMLA) of 1993 sets forth federal requirements regarding Employer – Employee relationships and leave. It applies to workplaces with 50 or more employees in a 75-mile radius.  (Smaller workplaces may be covered by state family and medical leave laws). The Act was designed to “balance the demands of the workplace with the needs of the family.” It basically allows a “qualified” employee to take a total of 12 work weeks of leave during a 12 month period to care for a new child, attend to a serious illness, or attend to a serious illness of the employee’s family member.  A “qualified” employee is one who has performed at least 12 months of service and worked 1,250 hours.

Many legal questions have arisen concerning this law. What qualifies as a serious illness? What qualifies as a family member? On the employer’s side, in order to determine if the requested leave qualifies for protection under the FMLA, an employer must be able to establish the reason and legitimacy for an individuals’ leave. Employers need to know whether a particular absence is protected under the FMLA, and therefore, whether it should be counted against the employee as an un-excused absence. For example, if an employer allows an employee two weeks of sick leave, and the employee has already used the two weeks, and then calls in sick a number of other days, the employer must determine whether the days of absence are protected under the Family Medical Leave Act before he or she could fire the employee. An employer should inquire as to how long the employee was out, whether the employee went to a doctor or other health care provider, or whether the employee completed the appropriate certification forms from the employer to show that the leave was covered.

It is important for employers to preserve evidence as to the reasons for the leave so that they can create a paper trail to protect themselves from potential law suits. On the other hand, an employee should also leave a paper trail to justify leave under the FMLA.

The definition of a serious medical condition is perhaps the biggest problem under this Act. The Department of Labor has developed a standard form that employers can send health care providers to gather information about the date the condition began, probable duration of the condition, medical facts about the condition and whether the employee needs a reduced schedule. Employees must provide similar documentation about the serious medical condition of a family member.

The FMLA must be set forth in any Employees’ Handbook distributed by an employer. Thus, if the employer has an Employees’ Handbook, it is required by law to include therein the provisions of the Family Medical Leave Act.

What is a “non-compete” agreement?

A non-compete agreement is a contract between an employer and an employee that prevents the employee from competing with the employer after the employee leaves the company. This includes prohibiting the employee from working for a competitor, so the agreements can be very limiting.

New employees often do not realize the significant consequence of entering into such an agreement, naturally assuming that the relationship will run smoothly. Many employees sign non-compete agreements with the mistaken assumption that they are unenforceable. As a result, employees often agree in writing to not work with the company’s clients and/or competitors for a period of years after the conclusion of their employment, with little negotiation. A non-compete agreement should be negotiated with the same vigor as one negotiates salary.

If I have signed a non-competition agreement, or am considering signing one, what is the legal standard that would apply to determine its enforceability?

Most states determine the enforceability of non-competition agreements under a so-called “reasonableness” standard. For example, in Virginia, a court will review the agreement under a three prong standard: (1) From the employer’s standpoint, is it no broader than necessary to protect the company’s legitimate business interests; (2) From the employee’s standpoint, is the agreement unduly harsh and oppressive in precluding his or her ability to earn a livelihood; and (3) Is the agreement consistent with public policy? The agreement must be reasonable under all three prongs. Each agreement is considered under the particular facts of each case, depending upon the particular wording of the agreement at issue and the attendant facts of the case. As a general matter, such agreements are generally disfavored under the law of most states, and in such circumstances will be strictly and narrowly construed against the company and in favor of the employee. However, they are certainly enforceable if drafted correctly.

Each individual should carefully read and assess a proposed non-competition agreement before they accept an offer and submit their resignation to leave a job. Particularly in the sales field, a prospective employee should ask at the interview whether he or she would be expected to execute such an agreement.

Click here for a “real-life” application of a non-compete agreement where the employer won $172,395 against an employee who breached his non-compete agreement.