Pitfalls to Avoid in Employee Terminations

Virginia, like almost all other U.S. states, is an at-will employment jurisdiction, meaning that employers generally may terminate employees at any time and for any reason (or no reason). With such free rein, employers are free to terminate employees any way they wish, right? Not quite. Even in at-will jurisdictions, there are still limitations on employers’ ability to terminate employees, and running afoul of them can land employers in serious legal trouble. While there are many defenses available to employers in employment law actions, preventing wrongful termination litigation is always the better option, and our Richmond employment lawyers will tell you how to do so below.

Misunderstanding the Nature of At-Will Employment

As we mentioned, at-will employment policies do not give employers carte blanche to terminate employees any way they want. In Virginia, there is a narrow exception to at-will employment for terminations that violate a public policy. There are three categories in which an employee may demonstrate wrongful termination under the public policy exception:

An employer violated a policy enabling the exercise of an employee’s statutorily created right
The public policy the employer violated was explicitly expressed in a state, and the employee was a member of the class of persons entitled to the protections enunciated by the public policy
The termination was based on an employee’s refusal to participate in criminal activity

See Rowan v. Tractor Supply Co., 263 Va. 209 (2002).

For more specific information about what kinds of activities may violate Virginia public policies, speak to a Richmond employment lawyer.

Failing to Document Performance Issues or Misconduct

Documenting performance issues or misconduct is not necessarily mandatory before terminating employees. However, if an employee challenges their termination as wrongful, having a detailed record as to why they were terminated can provide evidence that the termination was not wrongful. Conducting regularly scheduled performance reviews is an employment best practice, and not just for defending yourself in lawsuits — they provide employees valuable feedback on their performance and can help to mitigate performance issues before they become serious enough to warrant termination. The more detailed and specific you can be in your employee evaluations, the better.

Underestimating the Scope of Employment Discrimination

It goes without saying that terminating an employee due to discrimination — whether based on race, age, sex, or any other protected characteristic — is unlawful and will expose employers to wrongful termination lawsuits. But employment discrimination is broader than employers may realize, encompassing not just overt acts, but also discrimination via constructive discharge and/or hostile work environment. Constructive discharge occurs when an employee quits their job due to workplace conditions that are so intolerable that no reasonable person could be expected to endure them. A hostile work environment refers to situations in which an employee experiences unwelcome conduct that is severe or pervasive enough to create an intimidating, offensive, or abusive culture. The onus is on employers to prevent and/or remedy both of those scenarios, and failure to do so can lead to post-termination employment discrimination claims.

Creating the Appearance of Retaliation

Retaliation occurs when an employer takes an adverse action (including termination) against an employee due to the employee having engaged in a legally protected activity. “Legally protected activities” for the purpose of anti-retaliation law include, but are not limited to:

Whistleblowing
Taking leave
Requesting a reasonable accommodation
Reporting violations of health and safety laws
Participating in an investigation
Refusing to participate in criminal conduct

To prove retaliation, an employee must show (1) they engaged in a protected activity, (2) they were subject to an adverse action, and (3) there was a causal link between the protected activity and the adverse action. Establishing a causal link under element (3) can be difficult, but temporal proximity is a major component. Generally, the closer the termination to the protected activity, the stronger the inference of a causal link.

Terminating an Employee Shortly Before, During, or Shortly After They Take Leave

Most employees are eligible to take leave under a variety of federal laws, most notably the Family and Medical Leave Act. Many employers also offer paid leave as an employment benefit (although they are not required to). Generally, it is unlawful for an employer to terminate an employee because the employer requested or took leave. It is not unlawful to terminate an employee shortly before, during, or shortly after they take leave if they would have been terminated for another reason (e.g., documented pre-leave performance issues or company-wide layoffs). However, terminating employees at any point surrounding their leave is a high-risk activity. If you’re considering doing so, you should speak to a Richmond employment lawyer beforehand.

Forgetting to Re-Read Employment Contracts

Not all employees are at-will. Some may have employment contracts that state that they may be terminated only for cause. Such contracts may also have provisions related to the amount of notice the employee must have, whether and in what amount they are entitled to severance, and even the types of activities that can form the basis of “cause.” Terminating an employee in a manner that breaches any of those contractual provisions (or others) can expose employers to a breach of contract claim.

Mishandling Final Pay and Benefits

Virginia law requires terminated employees to receive their final wages by their next regular payday. And while Virginia does not require employers to pay out unused paid time off, it does require them to do so if their company policy explicitly states that it will. Delay in paying final wages or withholding paid time off in violation of company policy can expose employers to the risk of a lawsuit. Failure to pay can even carry criminal penalties in some cases.

Avoid Mistakes by Working With a Richmond Employment Lawyer

Some termination-related mistakes are easily avoidable, and even for those that are not, you can minimize the risk of litigation by working with an experienced attorney. For more information, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.