4.1 Introduction

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 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.

If there is an overarching principle, however, it is without question the presumption of employment at will. Therefore, any discussion of employment law in Virginia must begin there.

4.102 Employment at Will in Virginia.

Virginia, like most states, strongly adheres to the doctrine of employment at will. ¹⁹²³

The employment-at-will doctrine is a common-law presumption holding that the term of employment extends for an indefinite period and may be terminated by the employer or employee for any reason upon reasonable notice. ¹⁹²⁴ The at-will presumption can be rebutted by evidence showing that the employment is for a definite, rather than an indefinite, term. ¹⁹²⁵ This usually requires a written contract to overcome the statute of frauds. ¹⁹²⁶ The requirement of reasonable notice "simply means effective notice that the employment relationship has ended." There is no requirement of advance notice. ¹⁹²⁷

The employment-at-will presumption is often implicated because most employees do not have a written agreement with their 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 may 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 the employer is bound to pay wages (usually at an agreed rate) for the work done. Generally, employee handbooks ¹⁹²⁸ or offer letters ¹⁹²⁹ are not enough to defeat the at-will presumption.

In addition to employees with express written contracts, there are narrow categories of Virginia employees who are outside the employment-at-will presumption, such as employees belonging to a union or holding tenured public employment.

4.103 2020-2021 Statutory Changes.

While...