Understanding Wrongful Termination Laws & Avoiding Employee Lawsuits

September 24, 2020


Few employees take termination gracefully – especially in this economy. Business owners may have every lawful reason to let an employee go, but this seldom prevents frustrated ex-employees from filing wrongful termination litigation in Virginia. Whether an employee refused an offer of work, failed to abide by health safety regulations, or had subpar performance ratings, handling the termination lawfully and respectfully may help employers avoid frivolous employment litigation.

New managers, supervisors, and business owners must understand the basics of federal anti-discrimination and worker-protection statutes to avoid unwittingly violating their employees’ rights. Consider working with qualified employee relations and small business attorney at McClanahan Powers, PLLC to develop lawful termination strategies, discuss the conduct of an employee, or defend against wrongful termination lawsuits in Virginia or D.C. Call our dedicated Virginia/D.C. labor lawyers today at 703-520-1326 or connect with our virtual office online.

Overview of Wrongful Termination Laws & Policies

Most statutes protecting employees from unlawful termination stem from federal legislation. Many states have equivalent versions of these civil rights and workplace safety laws and specific rules regarding breach of employment contract claims. However, the employee protections outlined in the following legal acts underly the majority of wrongful termination litigation in Virginia and D.C.
Anti-Discrimination Laws

Many wrongful termination lawsuits fall under the Equal Employment Opportunity (EEO) Act administered by the Department of Labor (DOL), which prohibits firing employees based on their:

  • Race/color/ethnicity
  • Age
  • Citizenship
  • Disability
  • Sex (gender)
  • Veteran’s status
  • Marital status

Importantly, the United States Supreme Court recently extended these protections to terminations based on sexual preference and identity in Bostock v. Clayton County. An employer should not consider any of the above grounds in making a termination decision. Business owners must instead focus on an employee’s inability to perform the essential job functions outlined in the job description, i.e., arriving to work on time or communicating effectively. Lack of performance might stem from an employee’s age or family status, but those discriminatory factors may not inform the termination decision.

Americans with Disabilities Act (ADA)

Title I of the ADA prohibits certain covered employers with more than 15 employees, including private businesses, from discriminating against individual employees based on a qualifying disability. The ADA covers both the hiring and firing process. If an employee’s disability endangers another individual’s safety or otherwise inhibits essential job performance, discuss your options with a qualified small business attorney. A lawyer may explain the intricacies of ADA anti-discrimination laws, help you make reasonable accommodations, or otherwise discuss whether you have a lawful basis for termination.

Whistleblower Protections

A small subset of employees working with law enforcement or private attorneys to hold employers liable for certain legal violations may qualify for federal whistleblower protections under the False Claims Act. Employers may not retaliate against qualified whistleblowers for filing viable qui tam cases, and this includes terminating the employee, creating a hostile work environment, reducing compensation/benefits, or denying promotions. Courts or public entities must typically certify an employee/contractor as a qualifying whistleblower. If an employee disclosed confidential employer/client information to their attorney or law enforcement, and this is the basis for the termination, discuss your rights with local business counsel immediately.

Violations of OSHA Standards

Many employees have wondered whether they may refuse to work due to COVID-19 and still keep their jobs. Provided businesses abide by CDC safety guidelines and OSHA health standards; managers might terminate employees who arbitrarily refuse to work due to the coronavirus. However, legal practitioners anticipate numerous lawsuits based on COVID-19 related terminations. The law in this area is developing, and small business owners should discuss creating health safety guidelines for employees to prevent workplace health concerns. If one employee refuses to abide by health guidelines, and managers do not take affirmative action, employees may gain certain legal protections against related terminations.

Types of Wrongful Termination Lawsuits Potentially Available to Fired Employees

Virginia adheres to the “at-will” employment doctrine. In simple terms, this means employers may terminate their employees for any reason (or no reason) provided that reason is not unlawful. Courts generally presume a termination’s validity unless the employee identifies a particular state or federal law protecting him from the termination and presents related evidence. As such, former employees might file the following types of wrongful termination lawsuits:

  • Whistleblower retaliation
  • Discrimination and related civil rights violations under the EEO
  • Breach of a private employment contract (state-based)
  • Fraud/entrapment, i.e., manufacturing a legal reason for an otherwise unlawful termination
  • Refusing to fairly reemploy or work with veterans covered by the Uniformed Services Employment and Reemployment Rights Act
  • OSHA (workplace safety) violations justifying a refusal to work that results in termination

The majority of wrongful termination lawsuits fall under the EEO or arise from a private breach of contract claims. However, OSHA recently published important workplace safety guidelines for employees and employers returning to work during the pandemic. Experienced employment lawyers anticipate a surge in wrongful termination lawsuits alleging OSHA violations.

Proactive Measures Employers Might Take to Prevent Employee Litigation

Working with a qualified legal professional to draft legally compliant employee materials and termination policies could prevent or reduce wrongful termination litigation. Protecting your business from employee retaliation often means developing the following written documents:

  • A clear job description setting forth essential functions, including provisions related to the physical requirements of each position
  • An employee handbook setting forth expected conduct, reasons for immediate termination, and any warning system related to employee performance/behavior
  • Specific employment contracts preserving certain at-will termination policies
  • Confidentiality and non-disclosure agreements that include termination provisions
  • Clear human resources, severance, and firing policies

Additionally, employers should keep diligent notes on employee performance and behavioral issues leading to the termination. Human resource professionals often recommended consulting with corporate counsel before proceeding with a high-risk termination to ensure the legality and reduce the risk of litigation.

Protect your Business from Labor & Discrimination Disputes with the Wrongful Termination Attorneys at McClanahan Powers, PLLC

Small business owners in Virginia can avoid most wrongful termination lawsuits by (1) developing and abiding by legal termination policies and (2) discussing high-risk terminations with a dedicated employment litigation attorney at McClanahan Powers, PLLC. Whether you want to talk about firing a single employee, respond to a wrongful termination lawsuit, or protect your business from coronavirus-related employee litigation, connect with our dedicated Virginia/D.C. business counsel lawyers today by calling 703-520-1326 or contacting us online.