Week In Review

June 20, 2016

No Advance Notice Required to Terminate At-Will Employment in Virginia

The Virginia Supreme Court resolved a split among lower courts state courts and the federal district courts in Virginia regarding the notice employers are required to provide at-will employees prior to terminating them. The Court noted that it had held, in another case, more than 100 years ago that when an employment contract does not specify a time period for its duration, "either party ordinarily is at liberty to terminate it at-will giving reasonable notice of his intention to do so." Although the Court described this at-will doctrine as a "cornerstone" of the state’s employment law, it acknowledged that it had never addressed what constituted reasonable notice, and specifically whether it included a temporal component. Thus, the outcome of the case turned on the meaning of "reasonable notice." The Court held that "the phrase ‘reasonable notice’ simply means effective notice that the employment relationship has ended." The ruling allows Virginia employers to terminate at-will employees without providing advance notice, as well as allows at-will employees to terminate their employment without advance notice, as long as the terminating party provides effective notice that they are ending the employment relationship.

Colorado Gives Private Sector Employees Right to Inspect Personnel Files

Colorado has enacted legislation ensuring that private sector employees are allowed to inspect and copy their personnel files and records at least once a year. The law specifies that the inspection/copying shall take place at the employer’s office and at a time convenient to both the employer and the employee. A former employee may make one inspection of his or her personnel file after termination of employment. An employer may restrict the employee's or former employee's access to his or her files to be only in the presence of a person responsible for managing personnel data on behalf of the employer or another employee designated by the employer. The employer may require the employee or former employee to pay the reasonable cost of duplication of documents. The law is effective January 1, 2017.

New EEOC Guidance on Disability Accommodation

Under the Equal Employment Opportunity Commission’s (EEOC) new guidance on employee disability leaves, employers are required to provide disability accommodation leave and reinstatement rights even for disabled employees who have exhausted all Family and Medical Leave Act (FMLA) and other required or permitted medical leaves, unless the employer can show an undue hardship. The new guidance states that employers are required to provide job protections and reinstatement rights beyond those expressly required under the Americans with Disabilities Act (ADA) and the FMLA. Although the resource document does not have the force of law or regulation and the EEOC says that it is not intended to change the law, the guidance provides examples and insight into how the EEOC intends to enforce an employer’s obligation to provide disability accommodation leave and reinstatement rights to employees with disabilities.