Employment and Labor Law
Our attorneys are experienced in working with employers and employees handling discrimination cases, labor grievances, retaliation, whistleblower, breach of duty of loyalty and non-compete / non-competition agreements, misappropriation of trade secrets, and department of labor investigations. These issues can cause hardship to a business and be highly stressful for the employer and employee. We work with our clients to provide them with the knowledge and expertise to handle employment litigation 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.
Federal, State, and Local Employment Law
Labor and employment law is heavily regulated. There are numerous and overlapping Federal, State, and Local laws that apply. Besides, some unique differences can impact our clients’ strategies. 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 only to be six employees. This can sometimes lead employers who think that they are not exposed to the federal laws to behave poorly; unknowingly, they reveal 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 federal, state, and local options to best protect and enforce their clients’ legal rights.
Often employees misunderstand wrongful termination claims to be much broader than they are. Without a contract stating specific terms, employees are considered “at-will” in Virginia. This generally means that an employer may terminate the employee for any reason at any time. However, this is not absolute, and certain expressly prohibited exceptions can lead to a claim of wrongful termination. Typically, a wrongful termination claim made by an employee must be 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 violates public policy. A knowledgeable employment attorney can assist the employer or the employee in recognizing whether or not there is a liability for a claim of wrongful termination.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits termination or adverse employment action against an employee based on race, religion, ethnicity, sex, national origin, sexual orientation, and transgender status. Furthermore, there are prohibitions regarding discrimination due to pregnancy, age, or disability. A skilled and knowledgeable employment lawyer can assist you in determining the nature and extent of a wrongful termination claim.
Hostile Work Environment
Traditional hostile work environment claims require showing several elements, which include:
- There was unwelcome harassment.
- The harassment was based on sex, race, color, national origin, religion, sexual orientation, or transgender status
- The harassment was severe and pervasive that it altered the conditions of employment and created an abusive atmosphere
- There is some basis for imposing liability on the employer
These elements have been the subject of significant litigation and have been precisely 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 various 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.
Furthermore, there may be other claims available even if the case’s specific facts do not fit squarely into the elements of a hostile work environment. For example, there may be liability exposure regarding battery, defamation, wrongful termination in violation of Title VII, or retaliation, amongst many other possibilities. Both employers and employees must understand the legal landscape to best protect and enforce their legal rights.
Assisting with and Preparing for Employment Discrimination and Labor Grievances
The best way to reduce corporate costs for employee and labor disputes is to plan and take early action. 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 for and prepares for possible disputes and how to resolve them. In addition, we help implement workplace procedures and training to reduce liability and cut corporate costs.
W2 Employee or 1099 Independent Contractor
The Department of Labor (DOL) and the IRS have dedicated resources to auditing employers to determine if they have appropriately categorized their employees. In addition, W2 employees are protected by federal employment laws, federal health insurance laws, and unemployment insurance. The significant difference in rights afforded to W2 employees compared to those identified as 1099 independent contractors has 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 stored according to DOL guidelines. In addition, we work with businesses to review their payroll methodologies. For example, we will look to determine if overtime is paid appropriately, minimum wage requirements are met, and who qualifies as a “salaried’ or overtime-exempt employee. Finally, 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.
Hiring and Firing Practices
When it comes to employment and labor disputes, an ounce of prevention is worth a pound of cure. Every time a business hires, promotes or fires an employee, there is a risk of an employment or labor dispute. 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 firing an employee or another 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.
Proactive versus Reactive Employment Practices
Our lawyers spend the time working with a company’s human resources director and/or general counsel to ensure 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 at the moment, which 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.