Virginia Still a Bastion of “At Will” Employment

August 23rd, 2016

Stories of lawsuits challenging firings lead many employers to be reluctant to discharge even the most problematic employees. But in Virginia, any reports of the demise of the doctrine of employment terminable “at will” are premature.

Traditionally, employment has been presumed to be terminable at will by either party upon reasonable notice, with or without a showing of cause. Most employees fully understand half of this rule – the half that holds that they can quit their jobs at any time, leave their employers in the lurch, and face no consequences beyond a possible bad reference. In reality, the rule is a two-way street, meaning that employers generally retain the right to fire in the same manner.

The rule has been eroded by the adoption of several anti-discrimination laws (with protections for race, sex, age, disability, religion, etc.), and also by the decisions of courts and legislatures in many states. But while civil rights laws passed by Congress govern us all, Virginia’s state courts and General Assembly have generally refrained from expanding the list of exceptions.

In recent years, employee lawyers have tried to emphasize the “upon reasonable notice” phrase, so as to argue for at least a few weeks’ severance pay as a matter of course. Often this leads to more involved severance agreements being negotiated.

But the Virginia Supreme Court recently rejected the interpretation of “reasonable notice” as requiring some period of time to cushion the blow to a fired employee. The court instead construed the phrase as requiring only that the firing be communicated in an effective manner, so that the employee would not continue working unaware of his own termination. Since that scenario is almost unheard of, the decision has the practical impact of treating the “reasonable notice” language as superfluous.

It should be noted that construing “reasonable notice” as a fired employee might wish could backfire on employees generally, since any rule adopted for firings would apply with equal force to resignations as well. And no one has ever suggested that employees want to be open to suits by employers who find themselves harmed by workers unexpectedly walking off the job.

The true impact of the court’s ruling may be in diminishing the motivation for even entering into negotiations for severance agreements. The fewer rights a fired employee has, the less protection the employer needs, and thus, the trend towards offering more and more in severance pay and benefits merely to purchase a signed release of claims may have run its course.