Employment Law Fact vs. Fiction

Employment law is a vast and at times complex body of law, not least of all because it derives from both state and federal sources. It also implicates other areas of law, such as contract law, civil rights law, and labor law. As such, confusion and misinformation run rife among both employers and employees, leading to serious and costly mistakes by both parties. Here, our Richmond employment lawyers set the record straight on some of the most common employment law-related misconceptions.  

Fiction: Virginia Is an At-Will State, So I Can Be Fired for Any Reason 

Fact: Most employees in Virginia are indeed at-will employees, so they can be fired for any reason or no reason. However, there are major exceptions to that rule. One of the biggest is federal and state antidiscrimination law. It is unlawful to terminate even at-will employees if the reason for their termination is based on their race, sex, disability, or any other protected characteristic. A second major exception is retaliation — it is unlawful to terminate even at-will employees in retaliation for engaging in a protected activity, such as reporting an OSHA violation. So what “any reason or no reason” really means is “any legal reason or no reason.”

Fiction: Salaried Employees Don’t Get Overtime

Fact: Salary alone does not determine overtime eligibility. For an employee to be exempt from the Fair Labor Standards Act (FLSA) — the federal law that mandates the payment of overtime to certain employees — the employee must (1) meet the monetary salary threshold and (2) perform executive, administrative, or professional duties. If an employee does not meet both of those requirements, they likely are entitled to overtime even if they are paid a salary rather than hourly wages. Employers who misclassify non-exempt employees as exempt employees face legal liability, including fines, back wages, liquidated damages, and interest. Contact a Richmond employment lawyer for more detailed information about the intricacies of FLSA classification. 

Fiction: A Noncompete Agreement Is Enforceable as Long as I Signed It

Fact: It takes more than a signature on a noncompete agreement for the agreement to be enforceable. Virginia courts scrutinize such agreements closely and generally resolve any ambiguities in favor of the party against whom the agreement is sought to be enforced (i.e., the former employee). To be enforceable, noncompete agreements must be narrowly tailored to protect a legitimate business interest and impose only reasonable limits on time, geography, and scope of work. Moreover, Virginia law bans noncompete agreements for “low-wage employees,” which are defined as all employees who are non-exempt under the FLSA. Noncompete agreements for such employees are thus automatically null and void. 

Fiction: My Employer Can’t Fire Me While I’m on Leave 

Fact: It’s true that taking leave (e.g., employer-provided parental leave or Family and Medical Leave Act leave) is a protected activity for which an employer may not take adverse action against an employee. However, there are certain exceptions. One of the primary reasons is that an employee can be terminated while on leave if their termination is part of a round of layoffs that would have resulted in termination regardless of their leave. In that scenario, the employer is not terminating the employee for taking leave, but rather for an independent reason. Nonetheless, terminating employees during or shortly after leave is still a legally fraught endeavor, which is why you should speak to a Richmond employment lawyer if this is an issue in your workplace. 

Fiction: Age Discrimination Only Applies After Age 65

Fact: Both federal and state law protect employees aged 40 and over from age discrimination. However, there are two nuances that employers and employees should both be aware of: 

1. Age discrimination protections apply only to individuals aged 40 and over; they do not apply to age-related discrimination due to an employee’s youth. 
2. Age discrimination liability kicks in even if the perpetrator and the victim are both aged 40 and over; age discrimination plaintiffs do not have to show that the perpetrator was younger than them. 

Keep in mind, however, that age discrimination claims may be more difficult to prove than other types of discrimination claims, as federal law requires the discrimination to be the determinative factor, not merely a motivating factor. 

Fiction: Only Women Can Make Sexual Harassment Claims

Fact: Both federal and state sexual harassment laws protect all employees, regardless of their gender. Generally, sexual harassment is unlawful if it (1) is perpetrated as part of a quid pro quo scheme, or (2) creates a hostile work environment. Sexual harassment also need not be physical — it includes non-physical behaviors like flirting, sexually explicit jokes, lewd comments, displaying pornographic images, etc. Moreover, the victim and the perpetrator need not be of opposite genders; men may pursue sexual harassment claims against other men and women against other women. 

Fiction: If I’m Labeled an Independent Contractor, Employment Laws Don’t Apply to Me

Fact: It’s true that most employment laws do not apply to independent contractors — provided that the individuals in question are, in fact, independent contractors. Virginia law presumes that any individual who performs services in exchange for payment is an employee unless the payor can show that the individual is an independent contractor using the IRS’ guidelines. And just because two parties call their relationship a principal/independent contractor relationship, courts analyze how the relationship works in practice when determining whether a person is an employee or an independent contractor. If the alleged principal/independent contractor relationship looks more like an employer/employee relationship in practice, that’s what courts will deem it. 

Don’t Let Mistaken Assumptions Cost You — Work With a Richmond Employment Lawyer

Assumptions, especially those based on misconceptions, can cost both employers and employees dearly. Both parties can avoid such outcomes by working with experienced legal counsel who can navigate them through the twists and turns of employment law. To get real answers to your employment law questions, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.