Employee Discipline: Virginia

Federal law and guidance on this subject should be reviewed together with this section.

Author: Christine Zebrowski, Overbrook Law LLC

Summary

• Just as the nondiscrimination requirements of Title VII of the Civil Rights Act apply to discipline, so do the nondiscrimination requirements of the Virginia Human Rights Act. See Discipline and Discrimination.
• Virginia has a law against employment discrimination on the basis of disability that applies to all employers, regardless of the number of employees. See Virginia Disability Discrimination Law.
• Employers are prohibited from requesting, requiring, soliciting or administering a genetic test as a condition of employment. See Genetic Testing.
• Retaliation against an employee for making a complaint or for otherwise engaging in protected activity in the workplace is unlawful. See Disciplinary Retaliation Prohibited.
• Virginia law contains a number of retaliation and whistleblower protections. See Discipline and Discharge of Whistleblowing Employees.
• The Virginia Drug-Free Workplace Act, requires public employers to include certain provisions in all contracts over $10,000. See Drug Testing.
• In Virginia, state employees may access and copy their own personnel records. See Recordkeeping Requirements.
• Virginia recognizes the claim of false imprisonment, which occurs when an individual is restrained against his or her will and is not permitted to leave a room or area. See False Imprisonment.
• Virginia employers may not question job applicants about arrests or criminal charges that have been expunged. See Use of Arrest Records and Criminal Convictions.
• Virginia law protects an employee's right to social media privacy. See Social Media Privacy.
• Virginia has adopted the Virginia Uniform Trade Secrets Act (VUTSA). See Trade Secrets.
• Virginia recognizes an employee's fiduciary duty of loyalty to the employer, which exists whether or not the employee has an employment agreement that includes a restrictive covenant. See Employee Duty of Loyalty.
• In Virginia, restrictive covenants, or covenants not to compete, are disfavored restraints on trade. See Restrictive Covenants.
• Noncompetition agreements are enforceable in Virginia only if they are narrowly drawn to protect the employer's legitimate business interests, are not unduly burdensome on the employee's ability to earn a living, and are not against public policy. See Noncompete Language Must Be Limited to Competitive Activities.
• Virginia courts will not enforce a nonsolicit agreement that is overbroad. See Nonsolicit Agreements.
• Virginia courts will not modify, or blue pencil, overbroad provisions in a noncompetition or nonsolicitation clause. See Blue Pencil Doctrine.
• Virginia is a one party consent state under its wiretapping laws. See Wiretapping.
• Virginia employers may require lie detector tests, as long as the employer does not ask questions about an individual's sexual activities, unless the sexual activity resulted in a conviction under Virginia law. See Polygraphs.
• Virginia public employers may not require employees or job applicants to smoke or use tobacco products while on the job, and they may not prohibit smoking or use of tobacco products by employees while off the job. See Off-Duty Conduct.
• Virginia's Guidance for Employers to Mitigate the Risk of COVID-19 to Workers notes that individuals should not be terminated for not wearing a mask unless required by federal law. See COVID-19 Risk Guidance.