Our attorneys are experienced working with employers and employees handling discrimination cases, labor grievances, retaliations, whistleblower, breach of duty of loyalty and non-compete / non-competition agreements, misappropriation of trade secrets, and department of labor investigations. All of these issues can cause hardship to a business and can be extremely stressful to the employer and employee. We work with our clients to provide them with the knowledge and expertise to handle these situations quickly and favorably. When money and people’s jobs are on the line, the stakes are very high for both parties and it is essential to have an experienced and skillful employment lawyer working with you. We utilize cutting edge strategies and case law theory to put our clients in the best position for them to succeed.
Labor and employment law is heavily regulated. There are numerous and overlapping Federal, State, and Local laws that apply. In addition, there are some unique differences that can impact the strategies that our clients may utilize. For example, a federal Title VII discrimination claim requires the employer to have a minimum of 15 employees for an employee to maintain an action against the employer. However, Virginia state statutes require there to only be 6 employees. This can sometimes lead to employers who think that they are not exposed to the federal statutes to behave poorly; unknowingly, exposing themselves to state statutes. Similarly, some local county laws further reduce the requirements. It is worth noting that the differences between the federal, state, and local employment discrimination laws can be significant, including the damages available and statutory filing deadlines. We encourage all clients to speak with a knowledgeable and skilled Virginia employment lawyer who understands the options available at the federal, state, and local level to best protect and enforce their clients legal rights.
Often times employees misunderstand wrongful termination claims to be much broader than they really are. In Virginia, without a contract stating specific terms, employees are considered “at will.” This generally means that an employer may terminate the employee for any reason at any time. However, this is not absolute and there are certain expressly prohibited exceptions, which can lead to a claim of wrongful termination. Typically, a wrongful termination claim made by an employee must be made based upon a prohibited discriminatory purpose, such as those found in Title VII of the Civil Rights Act of 1964, retaliation for making a protected claim, or a termination that is in violation of public policy. A knowledgeable employment attorney can assist the employer or the employee in recognizing whether or not there is liability for a claim of wrongful termination.
Title VII of the Civil Rights Act of 1964 prohibits termination or adverse employment action against an employee on the basis of race, religion, ethnicity, sex, or national origin. In addition, there are prohibitions regarding discrimination as a result of pregnancy, age, or disability. A skilled and knowledgeable employment lawyer can assist you in determining the nature and extent of a wrongful termination claim.
Traditional hostile work environment claims require showing several elements, which include,
Each of these elements has been the subject of significant litigation and has been specifically defined and articulated by courts in various jurisdictions. A knowledgeable and experienced employment lawyer will be able to identify the facts of your case and apply them to the expansive case law. These types of cases are very fact specific and can be approached in a variety of ways. For example, a common problem faced by some individuals who may have a hostile work environment claims is the third element, harassment that was “severe and pervasive”. This element requires the activity to have occurred repeatedly and to a threshold level of severity. For example, an employee who was propositioned for a sexual act to keep their employment, refused, and then was terminated, may not fall within the traditional hostile work environment claim. However, a knowledgeable employment attorney will know to utilize the ‘quid pro quo’ sexual harassment claim in this type of situation, which notably does not require the third element that the harassment be severe and pervasive.
In addition, there may be other claims available even if the specific facts of the case do not fit squarely into the elements of hostile work environment. There may be liability exposure with regards to battery, defamation, wrongful termination in violation of Title VII, or retaliation, amongst many other possibilities. It is important for both employers and employees to understand the legal landscape, so that they can best protect and enforce their legal rights.
The best way to reduce corporate costs for employee and labor disputes is to plan ahead and take action early. The labor law and employment law attorneys at McClanahan Powers will work with your corporate and business management to prepare for risk assessment and reduction. We assist with creating and developing a business culture that accounts and prepares for possible disputes and how to resolve them. We help implement workplace procedures and trainings to reduce liability and cut corporate costs.
Recently, with the substantial changes to health care, the DOL and the IRS have both dedicated resources to auditing employers to determine if they have properly categorized their employees. W2 employees are protected by federal employment laws, federal health insurance laws, and unemployment insurance. The significant deference in rights afforded to W2 employees compared to those identified as 1099 independent contractors have led to increased auditing and enforcement by the DOL and IRS.
Our employment law attorneys try to stop problems before they start by working with employers, owners, human resources directors, and general counsel to ensure that employee and personnel files are being stored pursuant to DOL guidelines. In addition, we work with businesses to review their payroll methodologies. For example, we will look to determine if overtime is being paid appropriately, minimum wage requirements are met, and who qualifies as a “salaried’ or overtime exempt employee. Our firm’s Virginia employment lawyers have worked with clients during Department of Labor investigations and we utilize those experiences to find and resolve problems before a Department of Labor investigator can find them.
When it comes to employment and labor disputes, an ounce of prevention is worth a pound of cure. Every time a business hires an employee, promotes an employee, or fires an employee, there is a risk that an employment or labor dispute could occur. Hiring a new employee and promotions are often heavily monitored by other employees. This can lead to these other employees feeling disappointed that they did not get the position and lead them to start wondering if they were held back intentionally, and if so, why? This creates fertile ground for grievances and disputes with and amongst your employees. Exacerbating this problem is a firing of an employee or other employee termination situation. At least in these situations the employer is usually on alert that this could lead to grievance disputes and problems caused by the employee after they are terminated.
Our lawyers spend the time working with a company’s human resources director and/or general counsel to be certain that the company is taking the necessary precautions and utilizing appropriate safeguards. Our methodology is to try and stop the problem before it begins; however, on the job and in the real world your business team has to make decisions in the moment and these can lead to unanticipated problems. If the damage is already done, our attorneys will work with you and your team to assess liability, mitigate damages, protect your rights through litigation if necessary, and work with your team to create a strategy to minimize problems for the future.