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1. Virginia is a right-to-work state – so my employer cannot fire me, right?
NO. Being a “right to work” state has absolutely nothing to do with an employee’s right to work or ability of an employer to terminate employment. It deals with labor unions. Specifically, a “right to work” state has laws that provide that no employee can be forced, as a condition of employment, to join or pay dues to a labor union. So, in Virginia (and other states with right-to-work laws), if an employer is unionized, an employee cannot be forced to join or pay dues to the union. If the workplace is not unionized, right to work is irrelevant.
2. I know my employment is “at-will,” but that does not mean my employer can fire me without cause, right?
NO. At-will employment means that an employer can terminate an employee, or an employee can quit, at any time or for any reason, or no reason, without incurring legal liability. Now, there are “exceptions” to at-will employment, such as the public policy exception (for example, you cannot be fired for refusing to take illegal action), or an implied or written contract that modifies the at-will relationship. And, even if an employer can terminate an at-will employee, there are local, state and federal laws prohibiting discrimination and retaliation.
3. My employer calls me a 1099 contractor and I’m paid as a 1099 contractor, so, I must be a 1099 contractor, right?
NO. Whether a worker is a 1099 contractor or W-2 employee has (almost) NOTHING to do with their title or how they are paid; it is a legal analysis that looks at the work and relationship between the parties. Courts (and government agencies) will generally look to three factors: (1) Behavioral control – does the company control or have the right to control what and how worker does job; (2) Financial control – are business aspects controlled by company or does worker have opportunity for profit and loss; and (3) Relationship of the parties – are there written contracts or other factors that provide evidence of contractor or employee relationship? There is no bright line test. Rather, you need to look at the relationship and make a determination based on all the factors.
4. Can my employer fire me if I refuse to sign non-compete agreement?
MAYBE. . . . First, as a general matter, restrictive covenants are generally enforceable so long as they are narrowly drafted to protect the legitimate interests of the business/employer and allow employees to still earn a livelihood. However, in Virginia, since July 2020, non-competes are prohibited for “low wage” employees. A “low-wage employee” is a worker whose average weekly earnings during the preceding 52 weeks “are less than the average weekly wage of the Commonwealth.” In 2021, this is $62,140 per year. Note, the Virginia law is also applicable to independent contractors making less than $22.69 per hour.
5. Can my employer fire me for something I posted on social media?
IT DEPENDS. . . on whether the employee communications were protected or not. First, employers can and should have social media policies outlining guidelines for employees – this is especially important as politics have become more divisive and employers should outline employer and employee rights relevant to political expression in the workplace. The National Labor Relations Act (“NLRA”) protects and provides that employees should not be terminated for participating in “protected concerted activity,” which generally covers employment terms and conditions. Outside of such protected activity, employees can be fired for what is posted on social media.
If you have questions about these or other employment law issues, contact Merritt Green, who leads General Counsel, P.C.’s employment law practice. Merritt can be contacted at firstname.lastname@example.org or using this Contact Us form.