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Legal Insider: Wrongful Termination in Virginia

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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By Kimberly H. Berry

It can be very difficult for an employee to be called into a supervisor’s office or to the human resources office unexpectedly and be informed that his/her employment has been terminated. Following the notice of termination, usually the employee is escorted out of the building and is faced with a sense of shock and loss.

It is important to know that termination proceedings in Virginia are at will, which generally leaves significant discretion to employers in decisions to hire and fire employees.

However, if the employer has violated a state or federal law in terminating the employee (e.g., discrimination, whistleblowing, retaliation), the termination can be considered wrongful and potential avenues to challenge the termination may be available.

One step that a Virginia employee can do following an involuntary termination is to make an appointment with a Virginia employment attorney to review the issues related to the termination action in order to determine whether it can be considered a wrongful termination.

An attorney can also help evaluate what steps may be taken to minimize the career damage that has just occurred and whether the action taken may be appealable.

Employees often have more options following a termination action than is apparent to them on the day of termination. The employer may have broken federal or Virginia laws with respect to the termination action.

If so, then it may be possible to negotiate a resolution, such as through a separation or severance agreement, on behalf of the employee with the employer. This generally happens when the employee retains an attorney to contact the employer about the inappropriate nature of the employee’s termination in violation of applicable employment laws.

Following an employee’s termination, many Virginia employees ask our firm whether they should also apply for unemployment compensation. The answer as to whether an employee should apply for unemployment compensation depends on the factual circumstances of the termination.

Even if an employer terminates an employee in Virginia for alleged misconduct, the employee may still be able to seek and obtain unemployment compensation.

In addition, in Virginia the employer has the burden of proof if they want to argue that the employee was terminated for misconduct. The employer essentially has to prove that the employee violated a significant company rule (and it usually must be a clear rule).

In addition, it is often the case that an employee, through wrongful discharge negotiations, may obtain a resolution where the employer agrees not to contest unemployment.

Finally, an employee should keep in mind that if the employee is terminated for poor performance, as opposed to misconduct, unemployment compensation is generally granted. However, any separation or severance compensation received by the employee will typically delay receipt of unemployment compensation.

So, while a lot depends on unique factual circumstances in each case, and each case should be discussed with an attorney, it may very well be worth it to consider filing for unemployment compensation in Virginia even if the employer has alleged misconduct or egregious performance issues in the termination.

While our firm principally represents employees in wrongful termination proceedings (as opposed to representing employees in the actual unemployment compensation hearings), we often advise them on issues involving their unemployment compensation matters and factor these issues into separation or severance negotiations as they can relate to their wrongful termination cases and factor these issues into separation and severance agreement negotiations.

When facing wrongful termination issues in Virginia it can be helpful and important to obtain the advice from and representation of an attorney.

Our law firm advises and represents individuals in wrongful termination matters, including separation and severance agreement matters, in Virginia and other jurisdictions. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

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