AS OF THE END OF 2023:
- For the most part, by the middle of 2023, EDR, was once again holding in-person grievance hearings upon request, i.e., doing the things the way they were done pre-Covid-19.
AS OF THE END OF 2022:
There have been noteworthy developments related to the manner that grievance cases are heard and tried due to Covid-19, as well as new issues raised regarding Covid-19 state mandates, and related to new Virginia employment laws and their impact on grievance procedure cases, and related to some of my own cases since the last time I published my books concerning grievance procedure cases.
With the unwelcomed appearance of Covid-19 in Virginia by early 2020, the office that runs the Virginia state government grievance procedure, the Office of Employment Dispute Resolution (“EDR”), had to make profound changes in the way that grievance hearings were going to be conducted, and this meant that in my practice I had to make my own changes to accommodate these EDR changes. The main difference was that almost all grievance hearings presided over by Hearing Officers, which hearings are the means by which most grievance cases are decided, went from the familiar in-person hearings to hearings conducted via video conferencing. Obviously, having a video conference hearing or “trial” (and a trial is what for all intents and purposes a hearing is the equivalent of in a grievance case), feels like a much different experience than attending a traditional in-person hearing. I certainly had many trepidations regarding making this switch, but the bottom line is that despite the feel of awkwardness and incompleteness of the video conference experience, I have managed to attain some of my very best victories to date in cases in which the grievance hearings were conducted via video conference. Now, I do believe with the hoped-for significant waning or disappearance of the Covid-19 threat, EDR will once again in the not too distant future get back to conducting in-person hearings, at least for those who wish to have their cases adjudicated as a result of an in-person hearing.
Of course, Covid-19 not only has wrought changes with regard to how grievance hearings are conducted in Virginia, but it has also caused some Virginia public employees to question whether they must follow state mandates regarding the use of masks and/or getting vaccinated. There is not yet a lot of settled law to go by yet in relation to this area, but the general thrust of the law seems to be pointing to a conclusion that absent a medical or religious reason for not following these mandates, an employee who objects to these mandates does so at great peril for his or her job or government position.
Interestingly, during the time of what seemed like at times a government paralysis in terms of doing the work that government does due to Covid-19, the Virginia General Assembly (the state legislature) did pass some significant new employment laws, giving expanded rights protections to public and private employees in Virginia. In many potential public employee grievance cases, it will now be necessary to have a discussion with my clients as to how these laws may impact their decisions to grieve or not grieve their cases. And here in particular I am referring to two of these new laws. To have an adequate discussion in this realm it is first necessary to know what these particular new employment laws are, and then to see how they may or may not apply to a client’s case. The first such law is known as the Virginia Values Act. This law serves as the Virginia equivalent of the federal Title VII law outlawing many kinds of discrimination-based actions by employers against employees relating to work, and it applies to both public and employers with 15 or more employees for most type of discriminatory employment actions, but the law also covers employers with as few as 5 or more employees in a case of alleged unlawful discriminatory terminations. Any action brought under this new law must first timely file a complaint alleging unlawful discrimination with the Division of Human Rights at the Office of the Attorney General of Virginia and that complaint must then go through certain administrative steps aimed at seeking an agreed-to resolution of the complaint, but absent such an outcome, the complainant will then be permitted to file his or her own lawsuit in state court. The exception to this administrative process is in the case of discrimination based on pregnancy, childbirth, or related conditions. In such a case, the complainant may proceed right to court without having to first go through the administrative process of the Division of Human Rights. In some significant ways the remedies available for provable acts of unlawful discrimination are much more significant. For example, a plaintiff under this new law may recover even more damages than permitted under the federal Title VII laws. Also, under this new law, the definition of unlawful workplace discrimination is explicitly broadened to include sexual orientation and gender identity as protected classes of employees. The upshot of this new state law outlawing discrimination in the workplace for protected classes of employees is that for many employees pursuing a legal claim of unlawful workplace discrimination through the state system may well prove more attractive than going through the federal EEOC process, although in the early years of the implementation of this new law, I am sure there will a big adjustment period for both the Division of Human Rights and the state courts as to how to properly deal with the new burdens now placed on those bodies by this new law. For example, the state courts will have to go through a learning curve on the evidentiary burdens under this new law (which will undoubtedly track those under the federal Title VII).
When it comes to whether or not a state or local government employee in Virginia should pursue a perceived case of unlawful workplace discrimination under the Virginia state government’s or Virginia local government’s grievance procedure, despite the attractiveness of the new Virginia Values Act (“VVA”), in terms of how I will advise clients, I do not see my analysis changing in this regard. Basically, I inform clients who have been terminated that if they have a very strong discrimination case over the termination (and that is always a big “if” because of the heavy proof requirements), then they should indeed consider pursuing their claim under the VAA, especially if they value getting “monetary damages” much more than even to be returned to their position at work by the court judgment (or in some cases a settlement) to be achieved. Of course, in such a court case, the public employee can also achieve a court order (or in some cases from a settlement) requiring that the governmental agency that terminated the employee reinstate the employee to his or her former position at work. On the other hand, if the public employee who has been terminated values simply being reinstated to work and being awarded any lost back pay and benefits over securing additional monetary damages, and if the terminated public employee has any other valid and strong defense to his or her termination (other than a defense based on discrimination) under the applicable Virginia grievance procedure to her or his case–and my extensive experience shows that there are lots of such valid defenses–then the grievance process/procedure might be a much better route to take even though under the the grievance procedure monetary damages generally cannot be secured (although with Virginia state governmental employees, an award of some attorney’s fees is often achievable in a termination case where the employee prevails). There is one exception to the general rule that monetary damages cannot be achieved in a grievance case for a Virginia public employee, and this occurs in the very infrequent situation where the governmental employing agency in the case is willing to settle the grievance case for a monetary payment (usually representative of lost future pay) to a terminated employee in return for the employee agreeing not to return to work at that agency. Again, this only occurs in the rarest of grievance cases, usually involving an employee with a high level position and an extremely solid case for winning his or her grievance (often on the basis of being able to prove an improper motive, not necessarily even a discriminatory motive, on the part of the employer) and a situation where the employee’s return to work at that agency would simply be way too embarrassing both for the agency head and for those other high level management employees at the agency that were responsible for the employee’s termination. In addition to the preceding, the potential out of pocket fees and costs involved in selecting one course of action over another always must be weighed out and thoroughly considered before selecting one course over another. It is often the fact that out of pocket costs and/or fees to an employee are considerably less in a grievance case than in a court action which has many more cost variables than are involved in a grievance case.. Also, even where there is a strong case for proving discrimination, in a situation where the employee has not been terminated, the potential damages, if any, to be achieved in court if the employee prevails might be too little to even make the court battle worthwhile. Again, the preceding is the kind of advice that I have been giving during the past decades of my practice, and it has proven to be very sound advice, especially with the wide range of defenses available for winning grievance cases and the knowledge of knowing how to properly employ them. So each case must be viewed on its own merits, and this requires an in-depth discussion between lawyer and client.
The other new Virginia law that might appear at first blush to impact the decision as to whether or not to use the Virginia state government’s grievance procedure (run by EDR) or a Virginia local government’s grievance procedure, is the new anti-retaliation law found at Va. Code Section 40.1-27.3. This law in general prohibits an employee from being retaliated against by an employer over the employee having engaged in certain activities protected by law, such as, for example, reporting a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official, or refusing to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused because of this reason. Under this law, an adversely affected employee, i.e., the victim of unlawful retaliation, may go right to court (with a one year statute of limitations), and pursue available remedies. Now, it is true that there are many instances when a Virginia state government employee or a Virginia local government employee may be retaliated against for engaging in actions which are protected under this new state law, but a closer look at this law finds that a different related statutory section, i.e., Va. Code Section 40.1-2.1, actually precludes such government employees from using the anti-retaliation protection provisions of Va. Code Section 40.1-27.3. However, this does not leave such Virginia governmental employees without protection from those kinds of activities protected by the new Va. Code Section 40.1-27.3, because such employees have all along for the most part been able to employ the use of their grievance procedure to protect them. In fact, when it comes to Virginia state government employees, they even have broader protections in terms of the protected kinds of activities they can engage in, and in my own cases I have used this broader protection to win many a grievance case! Of course, any employee who is thinking of engaging in any kind of protest over a work instruction from a supervisor would be well advised to seek out the advise of counsel with regard to such a matter.
Since I first published my books grievance cases back in 2007 (see my Books Page), in terms of my own cases, I have continued to represent many public employees with their grievance cases, mostly at the state and local government levels, achieving many notable victories, including expanding out into new and exciting areas of defense such as First Amendment rights and cases involving unlawful retaliation against employees who had engaged in protected activity which simply enraged their supervisors. In addition, I have been able to help strengthen the chances of winning a case based on a mitigation defense, even when in fact the employee is guilty of violating an applicable state policy, something which the uninitiated might think is easy, but which in reality is a very hard thing to do, requiring an extra level of creativity in approaching a case. These newer cases of mine deserve a new book of their own, and this is something which I have in the back of my mind for a future long term project.