QUESTION

Was promised employment benefits when fired due to "position being restructured." Now employer is denying benefits due to misconduct.

Asked on Mar 25th, 2013 on Labor and Employment - Virginia
More details to this question:
Days after being hired as a receptionist, I was asked to take on work for two attorneys. Employer stated it wasn't legal secretary work. I hadn't been a legal secretary for years and had no experience whatsoever in the Commonwealth of Virginia, so I informed employer that I wasn't comfortable with taking on work for which I felt I wasn't qualified to do. Asked employer if they felt they should fire me and was assured that they would make the situation work. Never subsequently discussed. Never received anything but positive feedback. Five months later I was fired with no notice. Was given a two week severance check, promised letters of recommendation, told that they had received numerous compliments by clients during my tenure, and could collect unemployment due to restructuring. Employer withholding letters and now contesting benefits stating that I was fired for misconduct. I would appreciate your advice prior to telephonic hearing.
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1 ANSWER

There are several issues at play here. First, Virginia is an “employment at will” state, which means that you can be fired at any time for any reason or no reason so long as it’s not an illegal reason.  The main illegal reasons in Virginia are race, gender, religion, ethnicity, national origin, age, pregnancy, disability, and whistleblowing.  This means they can fire you even if you have overwhelmingly positive reviews throughout your tenure as long as none of those illegal reasons affected their decision.  Discrimination cases often turn on the facts of your own particular work environment. Second, you are entitled to unemployment benefits unless the employer can show misconduct.  The Virginia Employment Commission looks for a deliberate violation of a legitimate company rule or a willful disregard for the company’s interests.  The employer has the burden of proof on misconduct.  The Commission will want to know things like your hire and fire dates, pay rate, and the reason the employer gave you for the termination.  If the employer claims they fired you for breaking a company rule, the Commission will want to know whether you knew about the rule.  If you are denied benefits at the initial hearing, you have the right to appeal, at no cost, within 30 days.  I have represented other claimants at the appeal hearing stage before.  State law prohibits an attorney from collecting a fee from an unemployment claimant unless the claimant succeeds and the Commission approves the fee. Finally, while the company isn’t required by law to provide a positive reference, if you learn that they are making false statements of fact about your job performance to prospective employers, you may be able to bring a defamation action against the company and the people making the statements.
Answered on Mar 26th, 2013 at 3:29 PM

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