When an employee leaves a job, receiving severance pay can be the silver lining in the clouds of unemployment. Sometimes this pay is provided by an employer with no strings attached. But most of the time, receipt of a severance package is a two-way street: the employee has to also agree to certain things that the employer wants.
Depending on the terms of the severance agreement, this can include promising to keep confidential information secret, agreeing not to compete in a certain geographical area for a set period of time, or giving up the right to sue the employer for illegal conduct, like an unfair dismissal premised on illegal discrimination.
Are the severance benefits you’ve been offered enough to offset what you’ll have to give up? This is a hard decision to make anywhere, but if you’ve been offered a severance agreement in Arlington County, Virginia, you have a few additional factors to consider.
1. You May Be Covered by Arlington County’s Own Anti-Discrimination Law
Some of the main tools that employees use to fight employment discrimination are federal laws. These include Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act of 1990 (ADA).
State laws may also provide additional protections for Virginia residents. For example, the Virginia Human Rights Act (VHRA) prohibits employers from discriminating against employees on the basis of marital status.
But Arlington County has its own law that provides even greater employee protections from discrimination: the Arlington County Human Rights Ordinance (HRO). Most notably, the Arlington County HRO adds sexual orientation to the list of protected classes covered by federal and state laws.
A protected class is a group of individuals who are legally recognized as having special protections from discrimination based on a characteristic that they share, such as race, sex, or age. And while a few federal courts have concluded that sexual orientation is a protected class under Title VII’s prohibition of sex discrimination, most federal courts so far do not follow this ruling.
2. You Can Be Protected Under the Arlington County HRO Even if You Worked for a Smaller Employer
Federal laws provide powerful, consistent tools for combating employment discrimination, but they don’t apply to every employer. For instance, Title VII and the ADA only apply to employers with 15 or more employees, while the ADEA kicks in only if an employer has 20 or more employees.
In Virginia, the VHRA only applies to employers with at least six employees. For individuals who work for small businesses, this restriction can leave them vulnerable to employment discrimination without significant legal remedies.
That’s where the Arlington County HRO is special: it applies to employers with as few as four employees. This extra coverage can make the difference between having a potential lawsuit and having no legal recourse for employment discrimination.
3. You Can Work With Arlington County’s Own Enforcement Agency
To achieve the goals of the Arlington County HRO, the Arlington County Human Rights Commission (HRC) was established to receive complaints of employment discrimination, investigate them, and provide remedies, including compensatory damages, where appropriate.
However, getting relief from the Arlington County HRC can take a while, in that it must first investigate your complaint and then conduct a conciliation process (unless these informal negotiations are clearly futile).
Next, there is a public hearing, which is a bit like a mini trial. If the Arlington County HRC concludes that illegal discrimination occurred in violation of the local ordinance, it can take the necessary enforcement action, such as awarding compensatory damages.
4. You Can Go Directly to Court to Sue Your Employer
The Arlington County HRC has a comprehensive administrative process, as discussed in the above section. But the good news is that if you’re seeking damages for discrimination, you don’t have to go through that process. If you choose, you can instead go directly to court to sue for violations of the Arlington County HRO.
This is special because employees wishing to sue their employers in court under a federal law, such as Title VII, must first exhaust the available administrative remedies. This means filing a complaint (also called a “charge”) with the Equal Employment Opportunity Commission (EEOC). Only after the EEOC has investigated the complaint and failed to resolve it to the employee’s satisfaction can the employee sue the employer in court.
5. You Should Remember That There’s More to a Severance Package Than Just the Severance Pay
If you’re using the Arlington County HRO’s increased legal protections for added leverage during severance agreement negotiations, you should keep in mind that a bigger severance paycheck doesn’t always net you more money.
For example, during the time you’re collecting severance pay, you may be ineligible to receive unemployment benefits. Also, depending on how the severance pay is structured, you will almost certainly have to pay taxes on it.
Therefore, it may be better to ask for something else with your increased leverage, such as a positive reference letter, payment of health insurance premiums for an extended period, or not being subject to a restrictive covenant, like a noncompete or nonsolicitation agreement.
For More Information
Do you still have questions about severance agreements? Need help applying this information to your own severance agreement? Please feel free to contact our office to discuss your specific situation with an experienced Arlington County employment attorney.