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?
Are there other types of employment relationships, and what documents reflect the nature of that relationship?
What questions may an employer ask a prospective employee?
Should employers and employees use a written employment contract?
When must an employer pay “time and a half?”
May an employer demand that all employees submit to a polygraph (lie detector test)?
The Firing Process
Can an employer fire an employee with no “good” reason?
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?
Is this true even if the employer fires the employee for no “good” reason?
Should the employer have the employee sign a termination agreement?
- 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?”
Other Employment Questions
What is the federal Family Medical Leave Act?
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.