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When is it unlawful for a business to terminate an employee?

The short answer is, rarely. Virginia is an at-will employment state. This means that an employer can discharge an employee for any reason or for no reason at all, just not for an unlawful reason. An employer who terminates an employee for an unlawful reason may be liable to the employee. The question answer in this blog post is: when is a reason unlawful?

Termination is unlawful if it violates the protections of the United States Constitution. Various federal laws implement the protections found in the Equal Protection Clause of the Fourteenth Amendment. For example, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, national origin, pregnancy, childbirth or related medical conditions, and the status of married women. Other federal laws protect employees over the age of forty, and workers with certain kinds of mental or physical impairments.

Termination is also unlawful if contrary to Virginia public policy. A recent Virginia circuit court case, McCloskey v. Warren County Department of Social Services summarized the three types of public policy exceptions to employment at will in Virginia.

The first arises when an employer violates a policy that enables an employee to exercise a statutorily created right. An example of this is in the landmark employment case of Bowman v. State Bank of Keysville, where the employer violated public policy when it fired two employees for exercising their voting rights as stockholders in the company.

The second type of public policy exception arises when there is a public policy explicitly expressed in a statute, and the employee was clearly a member of the class of persons entitled to the protection of the policy. In other words, if the legislature explicitly states a public policy in a law, and an employer discharges an employee who was clearly protected by the policy, the termination is wrongful. The Virginia Supreme Court has rarely found this type of violation.

The final public policy exception is termination for refusing to engage in criminal conduct. This type of wrongful discharge arises when an employer asks an employee to participate in a crime, the employee refuses, and the employer discharges the employee for refusing.

The employment at will doctrine allows broad discretion for employers to terminate employees. Although the exceptions discussed above are narrow, they are also important, and can lead to liability if the employer violates them. The facts of every situation are different, and if your business is concerned about the implications of terminating an employee, you should contact an experienced Virginia business law firm.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia



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Neal Robinson

Neal specializes in corporation and business entity law, mergers and acquisitions, business planning and strategic analysis. His clients have ranged from start-up operations to well established organizations.

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