4.1 Introduction

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.1 INTRODUCTION

4.101 In General. As the body of law governing the employment relationship has expanded and matured, it has incorporated and drawn from disparate areas of legal thought. Because this process has not always been orderly or logical, arbitrary rules developed for other types of contracts and unlikely hypothetical scenarios about the length of performance may determine whether an employment agreement is enforceable. Ancient common-law principles of agency and tort have intermingled freely with cutting-edge technological principles related to creating, storing, and retrieving electronic information. Most Americans understand that it is unlawful to discriminate against employees based on factors such as race or sex, but it is similarly unlawful to discriminate against an employee who reports the use of unsafe containers in international shipping.

If there is an overarching principle, it is without question the presumption, sometimes elevated to the status of a "doctrine," of employment at will. Therefore, any discussion of employment law must begin with the presumption of employment at will.

4.102 History of Employment at Will in Virginia. Virginia, like most states, strongly adheres to the doctrine of employment at will. Although the concept of at-will employment is straightforward, the process of determining legal exceptions to the doctrine is complicated and occupies much of an employment lawyer's time.

The employment-at-will doctrine is not a substantive rule of law. Rather, it is a common-law presumption. In the absence of evidence that an employment arrangement is to run for a particular term or be terminated only upon certain events (for example, for just cause), an employment contract may be terminated by either party at any time and for any reason. The

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usual formulation of the doctrine provides that the termination must be upon reasonable notice to the other party, although little law exists on this aspect of the rule.

The employment-at-will presumption most often is implicated where the employee has no express oral or written agreement with his or her employer. This situation is often referred to as one in which the employee has "no employment contract," but that is not technically accurate, because even if there is no express written agreement, there could be an express oral agreement. More commonly, the absence of any express oral or written agreement usually results in a contract implied in law: the employee works, and...