Monday, September 22, 2008

At-Will Employment

Here at Gross & Romanick, our business law division is at the heart of our practice and we're dedicated to keeping our clients well-informed and educated about employment law here in VA. Below, you'll find a general discussion of at-will employment in Virginia, but if you're not familiar with the statutes mentioned, its best to seek legal counsel.


THE AT-WILL DOCTRINE: In the Commonwealth of Virginia when employees are hired, unless there is a specific contract, they are considered to be at-will employees. This means that the employee may be terminated at any time without notice or reason.

LETTERS OF ENGAGEMENT: Letters of engagement do not form a contract if all they do is state the basic terms and conditions of employment, even if they include items such as benefits, compensation, bonuses, and starting date. To be sure that an engagement letter is not misunderstood by the employee as forming a contract it is important to include a line that states that the employment is for no specific period of time and that the employer is free to terminate the employee at any time.

LAWS TO KNOW: Laws to know are the National Labor Relations Act; the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act as amended in 1991; any state or local anti-discrimination laws; the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Family and Medical Leave Act (FMLA); the Older Workers Benefit Protection Act; the Worker Adjustment and Retraining Notification Act; the Employee Retirement and Income Security Act; the Consolidated Omnibus Budget Reconciliation Act of 1985 and many others. Sound overwhelming? It can be. If you ever have any questions regarding your rights under the above laws you should consult your attorney.

EVALUATIONS: It is important to adopt a uniform system of evaluation of your employees for hiring and advancement. These evaluations may be closely scrutinized at a later date if your decisions are challenged by your employees in a discrimination suit.

OVERTIME AND THE FLSA: One of the most overlooked and misinterpreted laws is the FLSA's overtime requirements. When a non-exempt employee works over forty hours in one week that employee is to be paid time and one-half of their regular hourly wage. It is often mistakenly thought that this requirement can be satisfied by awarding the employee compensatory time off. Awarding compensatory time off can only be a substitute in very limited circumstances.

ACTION ADVICE: Most Employers prefer the at-will status and should take care not to change it by letter, contract or handbook. If you are not familiar with the statutes mentioned above, contact an attorney and have them explained to you.