Karen Elliott discusses precedential value of Virginia Supreme Court ruling in lawsuit alleging unlawful termination

June 7, 2016

In deciding the case Johnston v. William E. Wood & Associates, Inc., in which a former at-will employee argued that her termination was unlawful because she was not provided “reasonable notice” in advance of her termination, the Virginia Supreme Court is the first state court to consider the issue of reasonable notice to at-will employees in nearly 100 years. It is also one of only a handful of courts of last resort to have ever considered the issue and this decision of extreme precedential value could potentially impact employees across the country.

Recognizing that at-will employment “constitutes a cornerstone of the Commonwealth’s employment law,” the Virginia Supreme Court held that its repeated requirement that at-will notice of termination be reasonable “simply means effective notice that the employment relationship has ended.” In rejecting the employee’s argument that reasonable notice means advance notice, the court stated that “[i]mposing a requirement of reasonable advance notice is antithetical to the flexibility that lies at the heart of the at-will doctrine and would undermine the indefinite duration element of at-will employment.”

Earlier this year, Eckert Seamans labor and employment attorney Karen Elliott authored an amicus brief on behalf of six Virginia employer groups representing thousands of Virginia employers arguing that Virginia law and practice in this area does not support the requirement of advance notice for either employers or employees who seek to end an employment relationship. The court agreed with the amici argument that if advance notice were required to fire an at-will employee, employers would have to “face the prospect of an expensive trial with uncertain outcome” if they guessed wrong about whether or not the notice provided was lengthy enough. The court further agreed with the amici that any change to the at-will doctrine should be made by the legislature after full consideration of the social, economic, and policy implications.

Elliott weighed in on the opinion in the Bloomberg BNA Daily Labor Report article “Virginia High Court Sheds Light on At-Will Doctrine.”

“The opinion is helpful for employers because it recognizes that at-will is a cornerstone of Virginia law,” she said. “It is also helpful to employees because it clarifies that they aren’t obligated to give advance notice to their employer before resigning.”

In light of the ruling, employers should review their handbooks and make sure they don’t impose a temporal requirement, like two-weeks’ notice, on employees who resign, Elliott told Bloomberg BNA.

In addition, Elliott discussed the precedential value of the case in the Law360 article “At Will Workers Can Be Axed Anytime, Va. High Court Says.” “The amici specifically requested Virginia’s high court to provide a clear statement to guide Virginia employers and employees, and it did so by stating that ‘reasonable notice’ simply means effective notice that the employment relationship has ended,” Elliott said. “Better clarity could not have been provided.”

The full Bloomberg BNA and Law360 articles are available on their respective websites. (Access to content on third-party websites may require subscription.)

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