Employment Law

Is my employer subject to wage and hour laws?
If an employer has gross receipts in excess of five hundred thousand dollars per year, it is subject to Federal wage and hour laws under the Fair Labor Standards Act (FLSA). Smaller “mom-and-pop” type companies are not subject to FLSA. Virginia also has the Virginia Minimum Wage Act, which applies to all companies operating in the Commonwealth of Virginia and requires them to pay minimum wages, but does not address overtime issues.

Does my employer have to pay me for my break time?
Yes, unless it is long enough for you to take lunch or for the time to be principally beneficial to you instead of your employer. Breaks for which you should be paid typically include quick coffee breaks, bathroom breaks, and brief periods of down-time, such as when machinery or computers are down. For longer breaks, your employer could ask you to be “off-the-clock” and you would not be paid.

When am I entitled to overtime?
Unless you are an exempt employee, for every hour you work in excess of 40 hours per work week, your employer must pay time-and-a-half of your regular rate.

How is my regular rate calculated if I receive base pay plus commission?
Your regular hourly rate is based on your compensation from all sources. Overtime pay would equal one-and-a-half times this regular rate.

Which employees are exempt from overtime pay?
Exempt employees include professional, administrative and executive employees who have such qualities as advanced degrees, discretion over how the job is performed, are predominantly non-manual workers, and have a supervisory role over other employees. Exempt employees must be paid on a salary basis, meaning that they are paid a predetermined amount regardless of how many hours they work.

My employer asked me to sign a Non-Compete Agreement. Is that enforceable?
Non-Compete Agreements are often not enforceable. They are considered to be against public policy and will be strictly construed against an employer. To the extent that such an agreement is upheld, it cannot be broader than necessary to protect the legitimate business interests of an employer.

What should I do if my employer wants me to sign a non-competition agreement?
Often when an employer wants a departing employee to sign a non-competition or non-solicitation agreement, the employer will offer the employee a severance package in exchange for signing such agreements. An attorney can help negotiate a severance package and advise you on the terms of any agreements with the employer.

I am injured or sick and need time off from work. What are my rights?
Under the Family and Medical Leave Act (FMLA), employees are entitled to take up to twelve weeks of leave for a serious health condition of their own or of an immediate family member. You may be paid for any leave time you have accrued, but the remainder of your leave may be unpaid. If you are fired or demoted while out on sick leave, you should speak to a lawyer to protect your rights.

What rights do I have as an employee with a disability?
Under the Americans with Disabilities Act of 1990 (ADA), your employer must provide reasonable accommodations for your disability. A reasonable accommodation might include special equipment that allows you to perform your job or a flexible work schedule to accommodate frequent doctor appointments, so long as it is not an undue burden on the employer to do so.

I was fired for no good reason. I think my employer just didn’t like me. Can I sue for wrongful discharge?
Virginia is an at-will employment state. People can be fired for any reason or for no reason, but cannot be fired for a discriminatory or retaliatory reason. If you were fired for no reason or for a purely financial downsizing, you may be entitled to unemployment compensation (see below). However, if you were fired after complaining about actual or perceived discrimination or after disclosing unlawful practices of your employer (whistleblower), you may be the victim of unlawful retaliation. If you had not complained previously but believe you were fired because your employer just did not like you, you are only protected if they fired you based on your inclusion in a protected class, such as those based on your race, gender, age, national origin, or religion. Employers are allowed to discriminate based on other factors, such as sexual orientation, political affiliation, or drug abuse.

What should I do if I think I have been the victim of sexual harassment or a hostile work environment?
Employers are required to have a sexual harassment policy in place and employers must follow their own set procedures. A claim of a hostile work environment must demonstrate that the harassment was severe and pervasive. If you think you may have been the victim of sexual harassment or a hostile work environment, you should speak with a lawyer to determine the best course of action.

Am I eligible for Unemployment Compensation and what will I receive?
If you were laid off from work due to an employer’s downsizing and through no fault of your own, you may be eligible to receive unemployment compensation. The maximum recovery is approximately $15,000 over 6 months, but it could be less based on your income. If your former employer states that you were fired for cause, it is their burden to show you were fired for willful misconduct, such as insubordination, stealing lying, or missing work, not simply incompetence. To apply for unemployment compensation, file an application with the Virginia Employment Commission (VEC). You will be entitled to a telephone hearing and have numerous appeal opportunities if you are not satisfied with the outcome. Your lawyer can represent you are these hearings to ensure that your legal rights are adequately protected.

I am an employer and have been wrongly accused of discrimination. Can you help?
Our attorneys can help you whether you are an employee or an employer to make sure that your rights are protected. Claims of discrimination or other allegations can be a blow to the bottom line, even if they are false. Skilled counsel can help keep your liability to a minimum.