LEADING LEGAL ADVOCATES IN LOUDOUN COUNTY Employment Litigation & Transactions

What laws govern severance agreements in Virginia?

Severance agreements are governed by a combination of Virginia state law and federal employment laws. Virginia is an at-will state, so severance is not required unless a contract or policy provides it. However, any severance agreement must comply with the Virginia Human Rights Act, Virginia Code section 40.1.27.3, Virginia non-competition restrictions, and federal statutes such as Title VII, the ADA, the ADEA, and the FMLA.

What is the Virginia Human Rights Act, and how does it affect severance?

The Virginia Human Rights Act protects employees from discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and military status. A severance agreement cannot waive future rights under this Act and cannot restrict an employee from reporting discrimination.

Can a severance agreement waive discrimination claims under Title VII?

Yes, a severance agreement can waive past Title VII discrimination claims, provided the waiver is clear, voluntary, and not coerced. However, the agreement cannot prevent employees from filing EEOC charges or participating in investigations.

What is Virginia Code section 40.1.27.3″

Virginia Code section 40.1.27.3 protects employees from being fired or retaliated against for refusing to break the law, reporting illegal activity, or exercising protected rights. A severance agreement cannot force an employee to waive these protections, nor can it prevent reporting of unlawful conduct.

How does the Age Discrimination in Employment Act affect severance agreements?

Employees who are forty or older must receive special protections under the Age Discrimination in Employment Act when asked to waive age discrimination claims. These protections include a minimum twenty-one-day review period and a seven-day revocation period after signing.

Can employers shorten the ADEA review and revocation periods?

No. These deadlines are mandatory. If an agreement attempts to shorten the period or pressures an employee to sign sooner, the waiver of age discrimination claims may not be enforceable.

Are non-competition clauses allowed in Virginia severance agreements?

Virginia Code section 40.1.28.7:7 prohibits many types of non-competition agreements for lower and mid-income workers. Even in severance agreements, any post-employment restriction must be reasonable and cannot prevent employees from earning a living.

What is the difference between non-competition and non-solicitation in Virginia?

A non-competition clause limits where an employee can work. A non-solicitation clause restricts the employee from soliciting clients or coworkers. Non-solicitation clauses are more easily enforceable, but must still be reasonable and comply with Virginia law.

Can a severance agreement stop an employee from reporting illegal conduct?

No. Under federal and Virginia whistleblower laws, employees cannot sign away the right to report discrimination, harassment, fraud, or criminal activity to government agencies.

What federal whistleblower laws affect severance?

Several federal laws protect reporting of wrongdoing, including Title VII, the ADA, the ADEA, the FMLA, the Occupational Safety and Health Act, the Sarbanes-Oxley Act for certain employers, and various anti-retaliation provisions. Severance agreements cannot prevent participation in these processes.

What is the Older Workers Benefit Protection Act and why does it matter?

The Older Workers Benefit Protection Act is part of the ADEA and requires that waivers of age discrimination claims be knowing and voluntary. It mandates the review period, revocation period, and clear language requirements. If these rules are not followed, the release may be invalid.

Can a severance agreement include confidentiality provisions?

Yes, but they must be drafted carefully. Confidentiality clauses cannot prevent employees from reporting unlawful conduct or participating in investigations. They can protect business, trade, and financial secrets.

What is a non-disparagement clause, and is it enforceable in Virginia?

A non-disparagement clause prohibits employees from making negative statements about the employer. These are generally enforceable but must not be so broad that they conflict with public policy or whistleblower protections.

Can an employee waive the right to file a complaint with the EEOC?

No. An employee can waive the right to recover money through a lawsuit, but cannot waive the right to file a charge with the EEOC or participate in investigations. Any clause that attempts to block reporting is unenforceable.

Can a severance agreement cover unpaid wage claims?

Yes, unpaid wage or overtime claims can be included in a severance agreement, but employees should be compensated fairly for any outstanding wages. Virginia law imposes penalties on employers who unlawfully withhold wages.

Can an employer demand repayment of severance if the employee violates the agreement?

Some agreements include repayment provisions. These must be reasonable, clearly stated, and compliant with contract law. Counsel should always review them before signing.

Does Virginia allow employers to require arbitration in severance agreements?

Yes, arbitration clauses are generally enforceable in Virginia if properly drafted. These clauses can limit court access, so employees should understand them fully before signing.

Are severance payments taxed?

Yes. Severance is treated as taxable income under federal and Virginia tax law. Employers must typically withhold taxes just as they would with regular wages.

Can employees negotiate better terms even after receiving a severance offer?

Yes. Severance agreements are almost always negotiable. Employees can negotiate for higher pay, extended benefits, neutral references, modifications to restrictive clauses, or removal of unfair terms.

Are group severance packages treated differently under federal law?

Suppose multiple employees are terminated as part of a reduction-in-force. In that case, the employer must provide additional disclosures under the Older Workers Benefit Protection Act, including information about job titles, the ages of employees selected and not selected, and eligibility factors.

Can an employer rescind a severance offer?

Yes, unless the employee has already signed and accepted the agreement. Employers should use caution when doing so, as inconsistencies can raise concerns about retaliation.

How long does an employee have to file claims if they reject a severance agreement?

Deadlines vary depending on the claim.
• Title VII claims require filing with the EEOC within a limited number of days.
• Wage claims must follow Virginia statutory deadlines.
• Retaliation claims have separate time limits.
Employees should consult counsel immediately if they decline severance.

Why is legal review essential before signing a severance agreement?

A severance agreement permanently alters legal rights. It may waive claims, restrict employment opportunities, impose financial penalties, or silence the employee. Legal review ensures the agreement is fair, compliant with Virginia and federal law, and in the employee’s best interest.

What laws govern wage and hour disputes in Virginia?

Wage and hour disputes are governed by the Virginia Wage Payment Act, the Virginia Overtime Wage Act, and the federal Fair Labor Standards Act, which sets rules for minimum wage, overtime pay, and record keeping.

What is the Virginia Overtime Wage Act?

The Virginia Overtime Wage Act requires employers to pay one and a half times the regular rate of pay for all hours worked over forty in a workweek unless a lawful exemption applies.

Can my employer pay me a salary to avoid overtime?

No. Being paid a salary does not automatically exempt you from overtime. Your job duties determine exemption status under the Fair Labor Standards Act and Virginia law.

What counts as unpaid wages under Virginia law?

Unpaid wages include regular hourly pay, overtime, commissions, bonuses, tips, and any other promised or legally required compensation.

How quickly must my employer pay me after termination?

Under the Virginia Wage Payment Act, all earned wages must be paid on the next regular payday after separation.

Can an employer withhold my paycheck as punishment?

No. Employers cannot withhold wages as discipline. Wages must be paid on time unless a lawful deduction has been authorized in writing.

What should I do if my employer refuses to pay overtime?

Document your hours, gather pay records, and contact an employment attorney to evaluate your claim under Virginia and federal overtime laws.

Am I entitled to overtime if I work off the clock?

Yes. Any time you work that the employer knew or should have known about must be paid, even if the employer did not approve the overtime.

Can my employer take my tips?

No. Tips belong to the employee. Tip pooling is allowed only under strict legal rules and supervisors are never allowed to keep tips.

What is the minimum wage in Virginia?

Virginia sets its own minimum wage and it is often higher than the federal minimum. Employers must pay whichever rate is higher.

Can my employer classify me as an independent contractor to avoid paying overtime?

Misclassification is illegal. Many workers labeled as contractors are legally employees under Virginia and federal law and are entitled to overtime and wage protections.

Do travel hours count as paid time?

Yes, when the travel is required for work. Travel between job sites or travel required by the employer must be paid. Commuting from home to work does not count.

Do meal and rest breaks have to be paid?

Short breaks of twenty minutes or less must be paid. Meal breaks do not need to be paid only if the employee is fully relieved of all job duties.

Can my employer deduct money from my paycheck for mistakes?

Employers cannot deduct wages for mistakes, shortages, or damages unless the employee agrees in writing and the deduction does not reduce wages below minimum wage.

How far back can I recover unpaid wages?

Employees can recover unpaid wages for up to three years under Virginia law. Under the Fair Labor Standards Act, the period is two years, or three years for willful violations.

What penalties can employers face for wage violations?

Employers can face double or triple damages, civil penalties, interest, and liability for attorney fees under Virginia and federal laws.

What if my employer alters my time records?

Altering time records is unlawful. Employees should gather proof such as emails, text messages, schedules, or photos and contact an employment attorney immediately.

Can I be fired for asking about unpaid wages?

No. Retaliation for asserting wage rights is illegal under the Virginia Wage Payment Act and the Fair Labor Standards Act.

Can salaried managers be entitled to overtime?

Yes. Many salaried managers do not meet the legal test for exemption. If their actual duties are not primarily managerial, they may be entitled to overtime pay.

When should I talk to an attorney about unpaid wages?

You should contact an attorney as soon as you notice missing wages, unpaid overtime, altered time records, or misclassification. Early action improves your ability to recover everything you are owed.

What is the Family and Medical Leave Act?

The Family and Medical Leave Act is a federal law that gives eligible employees up to twelve weeks of unpaid, job-protected leave for qualifying medical and family reasons. It also requires employers to maintain health benefits during the leave.

Who qualifies for FMLA leave in Virginia?

To qualify, an employee must work for a covered employer, have at least twelve months of service, have worked at least one thousand two hundred fifty hours during the previous year, and work at a location with fifty employees within seventy five miles.

What reasons qualify for FMLA leave?

Common reasons include severe health conditions, caring for a sick family member, childbirth or adoption, pregnancy-related medical needs, and specific military-related family emergencies.

Can I take FMLA leave for my own medical condition?

Yes. Any serious health condition that incapacitates you or requires major medical treatment qualifies for FMLA leave.

Is pregnancy covered by FMLA?

Yes. Pregnancy, prenatal care, and recovery after childbirth are covered FMLA reasons. FMLA protects your job while you take leave.

Does my employer have to pay me during FMLA leave?

No. FMLA leave is unpaid, but employees may use accrued paid leave if the employer allows it or requires it under policy.

Can my employer deny FMLA leave if I qualify?

No. Covered employers must grant FMLA leave to eligible employees. Denying approved leave violates federal law.

Can my employer fire me while I am on FMLA leave?

Employers cannot terminate you for taking FMLA leave. They can only terminate for legitimate reasons unrelated to the leave. Any termination connected to leave is likely unlawful retaliation.

What is FMLA retaliation?

FMLA retaliation occurs when an employer punishes an employee for requesting or using FMLA leave. Examples include discipline, demotion, termination, pay cuts, or negative evaluations tied to the leave.

Does Virginia have its own family leave laws?

Virginia does not have a statewide family leave law that mirrors FMLA, but the Virginia Human Rights Act and certain local policies protect employees from discrimination related to pregnancy and medical conditions.

Can my employer require medical documentation for FMLA?

Yes. Employers may request medical certification, but they must follow strict guidelines. They cannot ask for overly detailed or irrelevant medical information.

Can my employer contact me during FMLA leave?

Limited contact is allowed for clarifying work matters or coordinating transitions. Constant communication or pressure to work may be considered interference.

Can my employer change my job while I am on FMLA leave?

When FMLA leave ends, you must be restored to your same job or an equivalent position with the same pay, benefits, and responsibilities. Employers cannot punish you by giving you a lesser role.

What is FMLA interference?

FMLA interference happens when an employer blocks, discourages, or complicates the employee’s ability to take leave. Common examples include delaying paperwork, misinforming employees about eligibility, or discouraging leave use.

Does FMLA cover mental health conditions?

Yes. Serious mental health conditions that require ongoing treatment or cause incapacity are covered under FMLA.

What if my employer says I used too much time?

FMLA provides up to twelve weeks per year. Employers must track FMLA time properly and cannot miscalculate or deny valid leave.

Can my employer count FMLA leave against me in evaluations?

No. Employers cannot use FMLA leave as a negative factor in evaluations, promotions, discipline, or employment decisions.

Can I sue my employer for FMLA violations?

Yes. Employees can file federal claims for FMLA interference or retaliation. Remedies may include reinstatement, back pay, front pay, attorney fees, and other damages.

Should I talk to an attorney before requesting leave?

If you believe your employer may retaliate or deny your rights, speaking with an employment attorney can help protect you and ensure your request is documented properly.

When should I contact an attorney about FMLA issues?

You should contact an attorney immediately if your employer denies valid FMLA leave, punishes you for requesting leave, alters your job, fires you during or after leave, or pressures you not to use your protected time.

Was I wrongfully terminated, or was it just “at-will” employment?

If you were fired for discriminatory reasons, retaliation, or in violation of your employment contract, that’s not just at-will that’s unlawful. I help people separate what’s legal from what’s just plain wrong.

What counts as wrongful termination in Virginia?

If you were let go because of your race, gender, disability, religion, pregnancy, whistleblowing, or for asserting your legal rights, you may have a claim. Let’s talk through the facts and see where you stand.

Can I sue if I was forced to quit?

Yes—this is called constructive discharge. If your employer created a hostile or intolerable work environment, I may be able to hold them accountable.

I was fired after taking medical leave. Is that legal?

No. If you were covered under FMLA and fired in retaliation for taking protected leave, your rights were likely violated. I’ve handled cases like this before we can fight back.

Do I have to sign a severance agreement right away?

Absolutely not. In fact, never sign a severance package without having me review it first. Many include waivers and restrictive covenants that can hurt you later.

My paycheck doesn’t match my hours. What should I do?

If you’re not being paid for all the hours you work, especially overtime, that’s a wage and hour violation. I can help you calculate what you’re owed and go after it.

I’m labeled as a contractor but treated like an employee. Can I challenge that?

Yes, and you should. Misclassification is a common wage violation, and it affects your pay, benefits, and legal protections. I’ve successfully handled these disputes.

What if I didn’t get paid for working off the clock?

That’s illegal. If you’re required or encouraged to work before or after your shift without pay, I can file a wage claim to recover those unpaid hours.

Can I be fired for reporting harassment or discrimination?

Not legally. If you were retaliated against for speaking up, you may have both a retaliation and wrongful termination claim. That’s where I come in.

How do I prove a wrongful termination case?

It starts with documentation—emails, performance reviews, witness statements. I’ll help you gather and build a compelling case with strategy and precision.

My employer keeps changing my schedule without notice. Can I do anything?

While not always illegal, if the changes violate an employment agreement or are part of a larger pattern of mistreatment, we should talk. There may be leverage.

What if my boss harasses me but HR does nothing?

You still have rights. I’ve handled many cases where HR failed to protect employees, and we took legal action to make it right.

I was fired after telling my manager I was pregnant. Can I sue?

Yes. Terminating someone because of pregnancy is a direct violation of both federal and Virginia law. Let’s talk about your options.

I’m afraid to report my employer—can I stay anonymous?

In many cases, yes. I’ll explain the process and walk you through your options to protect your identity and your job while asserting your rights.

How do I know if I qualify for FMLA?

It depends on the size of your employer and how long you’ve worked there. I’ll walk you through the criteria and help you assert your rights if you’re eligible.

What if my employer refuses to give me protected leave?

That’s a violation. Whether it’s FMLA, military leave, or ADA medical leave, I help employees fight for their legally protected time off.

Can I be punished for taking too many sick days?

If those days are protected under FMLA or a medical accommodation, absolutely not. Let’s review your rights before you’re disciplined or terminated.

Does Virginia require meal or rest breaks?

No, not for adults—but if your employer does offer breaks, federal rules may apply. I can help you determine whether any violations occurred.

Can I challenge a non-compete agreement I signed?

Yes. Many non-competes are overly broad or unenforceable under Virginia law. Let me take a look—I can tell you if it holds up or not.

I own a small business, how do I stay compliant?

Start with a strong employee handbook, legal contracts, and documented HR practices. I help businesses stay ahead of lawsuits before they happen.

What should be in an employee handbook?

Everything from at-will disclaimers and conduct expectations to leave policies and disciplinary procedures. I create handbooks that protect both you and your employees.

How often should we update our employee policies?

At least once a year—or any time the law changes. I offer ongoing reviews to make sure your business stays compliant.

Can I discipline an employee without getting sued?

Yes—if you do it consistently, legally, and with documentation. I advise business owners on how to handle terminations effectively.

I’m not sure what to include in an offer letter. Can you help?

Absolutely. I’ll draft or review your offer letter to make sure it’s transparent, compliant, and protects you from legal blowback later.

Do I need an attorney, or can I handle this myself?

If your job, reputation, or business is on the line, you need an attorney. I bring clarity, protection, and strategic advocacy to every case I take on.