Employee Discipline: Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Christine Zebrowski, Overbrook Law LLC
- Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to performance appraisals, so do the nondiscrimination requirements of the Virginia Human Rights Act. See Discipline and Discrimination.
- Retaliation against an employee for making a complaint or for otherwise engaging in protected activity related to discriminatory conduct in the workplace is an unlawful discriminatory practice under the Virginia Human Rights Act. See Disciplinary Retaliation Prohibited.
- Virginia has a law against employment discrimination on the basis of disability that applies to all employers, regardless of the number of employees. See Virginia Disability Discrimination Law.
- Employers are prohibited from requesting, requiring, soliciting or administering a genetic test as a condition of employment. See Genetic Testing.
- Virginia law contains a number of retaliation and whistleblower protections. See Discipline and Discharge of Whistleblowing Employees.
- The Virginia Drug-Free Workplace Act, requires public employers to include certain provisions in all contracts over $10,000. See Drug Testing.
- In Virginia, state employees may access and copy their own personnel records. See Recordkeeping Requirements.
- Virginia recognizes the claim of false imprisonment, which occurs when an individual is restrained against his or her will and is not permitted to leave a room or area. See False Imprisonment.
- Virginia employers may not question job applicants about arrests or criminal charges that have been expunged. See Use of Arrest Records and Criminal Convictions.
- Virginia law protects an employee's right to social media privacy. See Social Media Privacy.
- Virginia has adopted the Virginia Uniform Trade Secrets Act (VUTSA). See Trade Secrets.
- Virginia recognizes an employee's fiduciary duty of loyalty to the employer, which exists whether or not the employee has an employment agreement that includes a restrictive covenant. See Employee Duty of Loyalty.
- In Virginia, restrictive covenants, or covenants not to compete, are disfavored restraints on trade. See Restrictive Covenants.
- Noncompetition agreements are enforceable in Virginia only if they are narrowly drawn to protect the employer's legitimate business interests, are not unduly burdensome on the employee's ability to earn a living, and are not against public policy. See Noncompete Language Must Be Limited to Competitive Activities.
- Virginia courts will not enforce a nonsolicit agreement that is overbroad. See Nonsolicit Agreements.
- Virginia courts will not modify, or blue pencil, overbroad provisions in a noncompetition or nonsolicitation clause. See Blue Pencil Doctrine.
- Virginia is a one party consent state under its wiretapping laws. See Wiretapping.
- Virginia employers may require lie detector tests, as long as the employer does not ask questions about an individual's sexual activities, unless the sexual activity resulted in a conviction under Virginia law. See Polygraphs.
- Virginia public employers may not require employees or job applicants to smoke or use tobacco products while on the job, and they may not prohibit smoking or use of tobacco products by employees while off the job. See Off-Duty Conduct.
Discipline and Discrimination
Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to performance appraisals, so do the nondiscrimination requirements of the Virginia Human Rights Act. See Employee Management > EEO - Discrimination: Virginia.
The Virginia Human Rights Act generally covers employers with more than five and less than 15 employees. However, the VHRA's age discrimination provisions apply only to those employers with more than five, but less than 20 individuals. +Va. Code Ann. § 2.2-3903.
Under the Virginia Human Rights Act, employers commit an unlawful discriminatory practice if they engage in conduct which violates any Virginia or federal statute or regulation governing discrimination on the basis of:
- National origin;
- Sex, including pregnancy, childbirth or related medical conditions;
- Marital status; or
Employees covered by the Virginia Human Rights Act may file an administrative complaint with the Virginia Human Rights Council. Alternatively, employees may bypass the Council and file a private claim in Circuit Court or General District Court alleging discriminatory discharge on one or more of the basis listed above.
Court actions must be filed within 300 days of the discharge or within 90 days of a Council or local agency final determination, if the employee filed an administrative charge instead of proceeding directly to court.
Prevailing employees are entitled to the following:
- Damages of up to 12 months of back pay with interest; and
- Attorney fees not exceeding 25 percent of the back pay award.
Disciplinary Retaliation Prohibited
Retaliation against an employee for making a complaint or for otherwise engaging in protected activity related to discriminatory conduct in the workplace is an unlawful discriminatory practice under the Virginia Human Rights Act.
Accordingly, when an employee has complained of discrimination, the employer should carefully review all disciplinary measures to ensure that the documentation is well supported by objective criteria and the employee has been treated consistently with other employees who have not complained.
Employers in such cases should ensure that retaliation, or the appearance of retaliation, is not a factor in disciplining the complaining employee in order to avoid a retaliation claim.
Virginia Disability Discrimination Law
Virginia has a law against employment discrimination on the basis of disability that applies to all employers, regardless of the number of employees. +Va. Code Ann. § 51.5-41.
Accordingly, all employers are prohibited from discriminating against employees on the basis of disability when administering discipline and terminating employees. In addition to prohibiting disability discrimination, this law requires employers to reach a reasonable accommodation with an employee with a disability that would enable the employee to perform a particular job, unless accommodation would pose an undue burden.
Employers have the right to select the accommodation from among equally effective accommodations. Employers with less than 50 employees are not required to implement unreasonable accommodations.
Any accommodation that costs more than $500 to implement creates a rebuttal presumption of being unreasonable.
Employers are prohibited from requesting, requiring, soliciting or administering a genetic test as a condition of employment. Employers may not take adverse action against an employee or applicant based solely on genetic characteristics or genetic tests. +Va. Code Ann. § 40.1-28.7:1.
Discipline and Discharge of Whistleblowing Employees
Virginia employers are prohibited from discharging or discriminating against an employee because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under Virginia's safety and health laws. +Va. Code Ann. § 40.1-51.2:1; +Va. Code Ann. § 8.01-216.8.
Employees in Virginia are also protected against retaliatory discharge for filing a workers' compensation claim. See +Va. Code Ann. § 65.2-308.
The Virginia Fraud and Abuse Whistle Blower Protection Act protects whistleblowers from retaliation for reporting in good faith instances of wrongdoing or abuse committed by state agencies or any independent agency. See +Va. Code Ann. § 2.2-3009; +2014 Bill Text VA H.B. 1916. Although the Act previously protected only public employee whistleblowers, it has been expanded to protect any Virginia citizen who "witnesses or has evidence of wrongdoing or abuse and who makes or demonstrates by clear and convincing evidence that he is about to make a good faith report of, or testifies or is about to testify to, the wrongdoing or abuse to an appropriate authority." See +Va. Code Ann. § 2.2-3010.
Effective July 1, 2016, the Act covers employees and independent contractors of all govermental agencies (expanded from state agencies). +2016 Bill Text VA H.B. 821; +Va. Code Ann. § 2.2-3009. Governmental agenciesare defined as:
- Any agency, institution, board, bureau, commission, council or instrumentality of state government in the executive branch and any independent agency;
- Any county, city or town or local or regional governmental authority; and
- Any local school division.
In addition, an appropriate authority to which an individual may report a complaint includes local agencies and organizations having jurisdiction over criminal law enforcement, regulatory violations, professional conduct or ethics. +Va. Code Ann. § 2.2-3009.
The Act provides for a reward program for qualified whistleblowers whose complaints lead to a monetary recovery. The threshold for recovery to collect a whistleblower reward under the Act is $5,000. +2016 Bill Text VA H.B. 821; +2016 Bill Text VA H.B. 778.
When disciplining or terminating whistleblowing employees, Virginia employers should take care that no retaliation, or the appearance of retaliation, occurs. Employers should ensure that all documentation supporting the discipline or termination is objective, thorough and well supported by the facts at issue. In addition, employers should remember to treat whistleblowing employees consistently with other employees, to avoid the appearance of retaliation.
When disciplining or terminating an employee whistleblower, employers should be prepared to demonstrate that legitimate, nonretaliatory factors support the action. Employers should also consider whether supervisors who have been the subject of a whistleblowing complaint are the appropriate individuals to make disciplinary decisions about a whistleblowing employee.
In some circumstances, another manager or supervisor may be a more appropriate individual to administer discipline or terminate a whistleblowing employee.
The Virginia Drug-Free Workplace Act, requires public employers to include certain provisions in all contracts over $10,000. +Va. Code Ann. § 2.2-4312.
During the performance of a qualifying contract, the contractor must agree to the following terms:
- Provide a drug-free workplace for the contractor's employees;
- Conspicuously post a statement that the unlawful manufacture, sale, distribution, dispensation, possession or use of a controlled substance or marijuana is prohibited in the contractor's workplace and specifying the actions that will be taken against employees for violations;
- State in all solicitations or advertisements for employees placed by or on behalf of the contractor that the contractor maintains a drug-free workplace; and
- Include the provisions of these clauses in every subcontract or purchase order over $10,000, so that the provisions will be binding upon each subcontractor or vendor.
Employers may not require employees or job applicants to pay for drug testing. +Va. Code Ann. § 40.1-28.
Personnel records include documents relating to an individual's:
- Rates of pay;
- Other terms of compensation;
- Evaluation; and
- Request for reasonable accommodation.
Personnel records should generally be retained for at least four years after an individual's application or an employee's termination.
State employees may access and copy their own personnel records. See Virginia Department of Labor and Industry website.
Employees of private employers do not have a right to access their personnel files.
Employers must also retain wage records, including tips, scheduled hours and unemployment insurance records for at least four years. See Virginia Employment Commission website.
Records for Employees Under Age 16
Employers must keep time records for employees under the age of 16, including the time designated as a free-from-duty meal period, for at least three years from the date last worked by the minor. +Va. Code Ann. § 40.1-81.1.
Virginia recognizes the claim of false imprisonment, which occurs when an individual is restrained against his or her will and is not permitted to leave a room or area.
Supervisors should ensure that employees who are being disciplined or who are participating in an investigation or disciplinary interview are not placed in this situation, in order to avoid claims of false imprisonment.
Use of Arrest Records and Criminal Convictions
Virginia employers may not question job applicants about arrests or criminal charges that have been expunged. If asked, job applicants are not required to disclose information about arrests or criminal charges that did not result in a conviction or that have been expunged. +Va. Code Ann. § 19.2-392.4.
Accordingly, employers may only ask questions on employment applications or in job interviews about whether the individual was convicted of a crime or entered a plea of nolo contendere, i.e., no contest.
Social Media Privacy
As of July 1, 2015, Virginia law protects an employee's right to social media privacy. +2014 Bill Text VA H.B. 2081. Specifically, an employer may not discipline an employee for refusing to:
- Provide access information to his or her social media accounts; or
- Add a co-worker, supervisor or administrator to a list of contacts linked to his or her social media accounts.
However, an employer may continue to:
- View or access any information about a current employee that is publicly available;
- Comply with requirements of federal, state or local laws, rules or regulations, in addition to the rules and regulations of self-regulatory organizations (e.g., the Financial Industry Regulatory Authority (FINRA));
- Develop written workplace policies governing the use and monitoring of employer-owned or employer-provided hardware, equipment or accounts; and
- Investigate instances of misconduct stemming from a violation of written workplace policies or any federal, state or local law. Although an employer may request an employee to disclose his or her username and password during the course of such an investigation, an employer must use the social media access information for investigation purposes only.
Virginia has adopted the Virginia Uniform Trade Secrets Act (VUTSA). +Va. Code Ann. § 59.1-336.
Trade Secrets are defined under VUTSA as information that derives independent economic value from not being generally known to, or readily ascertainable by, others who can obtain economic value from its disclosure or use. To be protected as a trade secret, the employer must make reasonable efforts under the circumstances to maintain the secrecy of the information.
For example, information that has been qualified as a trade secret includes:
- Customer lists;
- Pricing information;
- Marketing and sales techniques; and
- Product information.
Under VUTSA, the misappropriation, unauthorized use or disclosure of the trade secret is prohibited. However, the owner of a trade secret is not entitled to prevent others from using public information to replicate his product, or to prevent others from making similar products which are not derived from the trade secret. See, MicroStrategy Inc. v. Li, +268 Va. 249 (2004).
Virginia also has common law, or nonstatutory, protections of trade secrets, including claims for:
- Breach of contract. See Stone Castle Fin., Inc. v. Friedman, Billings, Ramsey & Co. +191 F. Supp. 2d 652 (E.D.Va. 2002); and
- Breach of fiduciary duty, when the employee uses the employer's trade secrets to the disadvantage of the employer and to the benefit of a competitor. See Tryco, Inc. v. United States Med. Source, +80 Va. Cir. 619 (2010).
Employee Duty of Loyalty
Virginia recognizes an employee's fiduciary duty of loyalty to the employer, which exists whether or not the employee has an employment agreement that includes a restrictive covenant. This duty requires employees to refrain from competing with the employer during the period of employment. This duty does not in itself prevent an employee from making arrangements to compete with the employer while he or she is still employed.
However, the right to "prepare to compete" is not absolute, because the employee still owes the employer a duty to act in the best interests of the employer and to perform his job with integrity and fairness. Whether or not the employee's duty of loyalty has been breached depends on the facts and circumstances of each case.
In the event an employee breaches this duty, the employer can sue for damages. See Williams v. Dominion Tech. Partners, L.L.C., +265 Va. 280 (2003).
For example, an employee's theft of his or her employer's customer lists or business information is a violation of the employee's fiduciary duty of loyalty. See Phoenix Fin. Corp. v. Radford, +44 Va. Cir. 445 (1998).
Yet, encouraging other employees to leave is not necessarily a breach of the employee's fiduciary duty of loyalty to the employer. See BB&T Ins. Servs. v. Thomas Rutherfoord, Inc., +80 Va. Cir. 174 (2010).
In Virginia, restrictive covenants, or covenants not to compete, are disfavored restraints on trade. The employer bears the burden to show that the restraint is reasonable and no greater than necessary to protect the employer's legitimate business interest. Any ambiguities in the contract will be construed in favor of the employee.
Covenants not to compete are upheld only when employees are prohibited from competing directly with the former employer or through employment with a direct competitor. Specifically, a court will consider whether the restrictions are:
- Narrowly drawn to protect the employer's legitimate business interest;
- Not unduly burdensome on the employee's ability to earn a living; and
- Not against public policy.
An analysis of these three factors requires consideration of the restriction in terms of function, geographic scope and duration. See BB&T Ins. Servs. v. Thomas Rutherfoord, Inc., +80 Va. Cir. 174 (2010).
Noncompete Language Must be Limited to Competitive Activities
Noncompetition agreements are enforceable in Virginia only if they are narrowly drawn to protect the employer's legitimate business interests, are not unduly burdensome on the employee's ability to earn a living, and are not against public policy.
Under Virginia case law, the type of postemployment conduct that can be restricted includes:
- Engaging in any activity that actually or potentially competes with the employer;
- Taking on a role which would compete with the business of the employer; or
- Rendering competing services to any customer or client of the employer for whom the employee performed services during his or her employment by the employer.
Home Paramount Pest Control Cos. v. Shaffer, +282 Va. 412 (2011).
Virginia employers may not restrict former employees from working for competitors in a capacity that does not compete with the employers' business. For example, a marketing executive may not be prevented by a noncompete clause from going to work for a direct competitor as a mail clerk or corporate chef, since those jobs are unlikely to result in the employee actually competing with the former employer's business.
The validity of noncompete agreements should be determined by a court on a case-by-case basis, allowing an employer to provide proof as to why the restraints are reasonable. See Assurance Data, Inc. v. Malyevac, +2013 Va. LEXIS 103.
Virginia courts will not enforce a nonsolicit agreement that is overbroad. See, e.g., Integrity Auto Specialists, Inc. v. Meyer, +2011 Va. Cir. LEXIS 260 (2011).
Blue Penciling Doctrine
Virginia courts will not modify, or blue pencil, overbroad provisions in a noncompetition or nonsolicitation clause. If a court finds a restriction to be too broad, it will reject it. In some cases, Virginia courts have invalidated the agreement altogether.
For this reason, employers should ensure that any noncompetition or nonsolicitation clauses or contracts are narrowly drawn to protect the employer's legitimate business interests only. Overreaching by employers in this regard is likely to result in a lack of enforcement by the courts.
In sum, noncompetition and nonsolicitation agreements need to be drafted narrowly to avoid being rejected by a Court should an employee challenge such provisions for being unreasonable or overbroad.
Virginia is a one party consent state under its wiretapping laws. This means that communications may be intercepted, recorded, used or disclosed by one of the individuals participating, or if one of the individuals gives his or her consent to the interception.
If there is no consent by any party to the communication, the communication may not be intercepted, recorded, used or disclosed, and to do so is a crime. Virginia's wiretapping law applies to wire, electronic and oral communications. +Va. Code Ann. § 19.2-62; +Va. Code Ann. § 18.2-10.
Virginia employers may require lie detector tests, as long as the employer does not ask questions about an individual's sexual activities, unless the sexual activity resulted in a conviction under Virginia law. +Va. Code Ann. § 40.1-51.4:3.
Any written record of the results of a polygraph examination must be either destroyed or maintained on a confidential basis. The results of any polygraph examination may be reviewed only with the agreement of the individual who was tested.
Law enforcement agencies and jails may not require employees to submit to a lie detector test, except in the case of an internal investigation concerning allegations of misconduct or criminal activity. Employees of a law enforcement agency or jail may not be discharged, demoted or otherwise discriminated against solely on the basis of the results of a lie detector test or for refusing or failing to take a lie detector test. +Va. Code Ann. § 40.1-51.4:4.
Off - Duty Conduct
Virginia public employers may not require employees or job applicants to smoke or use tobacco products while on the job, and they may not prohibit smoking or use of tobacco products by employees while off the job. +Va. Code Ann. § 2.2-2902; +Va. Code Ann. §15.2-1504.
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