Category Archives: Wrongful Termination

What’s is Virginia’s Right-to-Work Law?

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For decades, Virginia’s right-to-work law has been a defining feature of the Commonwealth’s labor landscape. Va. Code § 40.1-58 et seq., prohibits requiring any employee to join a union or pay union dues as a condition of employment. Supporters consider it a safeguard of individual worker freedom, while opponents view it as a structural barrier that weakens unions and depresses wages. With the recent of introduction of SB 32, a bill seeking to repeal the law in its entirety, Virginia is reexamining a policy that has shaped workplaces for generations.

One of the most persistent misconceptions in employment law is the belief that “right-to-work” means an employer may fire an employee at any time, for any reason. That is incorrect. The doctrine permitting termination without cause is called “at-will employment,” and Virginia, like most states, follows “at-will” as its default rule. “Right-to-work” laws have nothing to do with hiring or firing. They relate solely to whether union membership or fees can be required as a condition of employment.

Virginia adopted its right-to-work in 1947, in the same period that Congress enacted the Taft-Hartley Act, which expressly permitted states to ban contractual requirements compelling union membership. The core language declares it “the public policy of the Commonwealth” that a worker cannot be denied employment because of membership or non-membership in a union. In practice, this means employers and unions may not negotiate union-shop or agency-shop clauses that would require represented employees to join a union or pay fees to support representation.

Virginia’s right-to-work law does not ban unions. It does not prohibit workers from organizing, voting for union representation, or engaging in collective bargaining where otherwise permitted. Instead, it restricts labor-management agreements requiring workers to financially support the union that represents them. This restriction can create a “free rider” problem often cited by labor organizations. Unions in right-to-work states must represent all employees in the bargaining unit, even non-members that choose not to pay dues. In effect, non-member employees still receive the benefit of higher wages, benefits, and grievance representation without paying for those services, thereby weakening unions’ finances, reducing bargaining power, and helping keep union membership low.

With a pending Administration change, SB 32, https://lis.virginia.gov/bill-details/20261/SB32 seeks to repeal Virginia’s right-to-work statute outright and allow employers and unions to negotiate contracts requiring employees covered by a collective bargaining agreement to either join the union or pay a fee to support its representational activities. (Under current law, public-sector workers would remain exempt from mandatory fees regardless of SB 32’s fate). Repeal would not impose automatic membership on every worker, but it would open the door for unions and employers to negotiate contracts that require represented employees to either join the union or pay equivalent fees as a condition of employment. Labor advocates argue this proposed change will strengthen workers’ collective bargaining power, potentially leading to improved wages, benefits, and working conditions. Business groups counter that mandatory fees will drive up labor costs, potentially making Virginia less competitive in attracting new businesses and encouraging existing employers to relocate to right-to-work states. With these competing interests, any change is certain to be highly contested.

Richmond Employment Lawyer

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Wrongful Termination: Can an Employee Be Fired for Discussing Wages or Work Conditions With Co-Workers?

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What Is Concerted Activity?

Under the National Labor Relations Act (NLRA), employees (including most non-union employees) have the right to engage in concerted activities for the purpose of mutual aid or protection—such as discussing wages or seeking improvements in workplace conditions. However, not all complaints or discussions are protected.

  • Concerted activity means actions taken by or on behalf of a group of employees, or activity that seeks to initiate, induce, or prepare for group action.
  • Activities solely related to personal issues—for example, an employee complaining only about their individualized grievance that does not relate to or seek to involve others—generally are not protected as concerted activity under the NLRA.

In the recent Ninth Circuit case NLRB v. North Mountain Foothills Apartments (2025), the court found that discussing pay and poor working conditions with coworkers, which led to broader concern and affected others, was protected. The employee’s conduct was not just about a personal matter—it was relevant to the group and sparked wider discussion among employees.

NLRB’s Role and the Adjudication Process

The National Labor Relations Board (NLRB) enforces the NLRA by investigating charges of unfair labor practices, conducting hearings before administrative judges, and issuing decisions and remedies to protect employee rights. The process is administrative, focused on restoring the employee’s prior position (“make-whole relief”) when rights are violated. If the NLRB finds an employer retaliated for protected concerted activity, possible remedies include reinstatement to the employee’s job, back pay and lost benefits, and cleansing of personnel files and orders requiring posting of notice of rights.

As clarified in both the North Mountain decision and by the NLRB in Thryv, Inc., these remedies are equitable—designed to make the employee whole, not to punish the employer. Under present case law, compensatory or punitive damages generally are NOT available, and there is no right to a jury trial in the NLRB process.


Virginia’s Added Protections: Va. Code § 40.1-28.7:9

Virginia law has added a strong parallel protection.  Under Virginia Code § 40.1-28.7:9, it unlawful for employers to discharge or retaliate against employees for inquiring about, discussing, or disclosing their wages or compensation. This law applies regardless of whether there is union involvement. Virginia law also grants employees the right to: file a civil lawsuit in state court and seek remedies including reinstatement, back pay, and “other appropriate relief.”

Takeaway: Employees discussing wages or work conditions for their mutual benefit are protected against employer retaliation under both federal and state law. But purely personal complaints, unrelated to group concerns, may not enjoy such protection. Employers should exercise great caution about disciplining employees for pay or condition-related discussions and seek legal counsel before taking any adverse action.

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A New Standard for Workplace Discrimination after Muldrow v. City of St. Louis

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Muldrow v. City of St. Louis, 601 U.S. 346 (2024), resets the bar for Title VII discrimination claims. The plaintiff, a police sergeant, alleged an involuntary transfer replaced her with a male officer and imposed less desirable duties, schedule changes, and loss of job privileges, though rank and pay stayed constant. The Eighth Circuit affirmed dismissal under a “material employment disadvantage” test, which the Supreme Court rejected as inconsistent with Title VII’s text and structure. The Supreme Court’s opinion resolves a long-standing circuit split over whether Title VII requires “significant” harm for discrimination claims that do not involve economic losses or formal demotions

In a unanimous decision, the Court held that an employee alleging a discriminatory transfer “must show some harm with respect to an identifiable term or condition of employment,” but that such harm “need not be significant” to violate Title VII. The Court rejected circuit rules demanding a “material employment disadvantage” or other heightened adversity showing, explaining that importing a significance test adds words that Congress did not enact into Title VII’s prohibition on discrimination “with respect to compensation, terms, conditions, or privileges of employment”.

Core standard clarified

Title VII plaintiffs must prove discriminatory treatment and a resulting identifiable injury to the job’s terms, conditions, or privileges, but the injury need only be some harm rather than a heightened “significant” or “material” harm. The Court emphasized that discrimination means being made worse off because of a protected characteristic, and nothing in the statute scales how much worse off one must be; requiring “significance” imposes hurdles contrary to the statute’s plain language.

What counts as “some harm”

The decision requires a tangible, job-related detriment—changes to duties, schedules, prestige, responsibilities, or privileges can qualify if they concretely alter terms or conditions. In Muldrow, the alleged harms included loss of specialized responsibilities and prestige, schedule changes, and loss of an unmarked take-home vehicle, illustrating how non-pay consequences can meet the threshold when tied to job terms or conditions. The Court did not catalog every qualifying harm or define “some” with precision, leaving lower courts to apply the standard case by case.

Broader implications

By lowering the degree-of-harm threshold, the Court made it easier for discrimination claims based on transfers to proceed past pleading and summary judgment, particularly where prior circuit precedent demanded “material” adversity. The ruling is not confined to transfers; its reasoning applies across Title VII discrimination claims so long as the plaintiff shows some injury to identifiable terms or conditions of employment caused by protected-class discrimination. The decision still may leave intact separate, higher adversity standards in retaliation cases, which many courts continue to frame as requiring “materially adverse” actions in that distinct context.

Virginia employees now protected if they miss work to attend eviction proceedings.

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A little known amendment to the Virginia code now affords employees a new basis for job protection in the event they are compelled to attend court for an unlawful detainer or eviction. It is now unlawful for an employer to “discharge [an employee] from employment or take any adverse personnel action against him as a result of his absence from employment due to appearing at any initial or subsequent hearing on such summons, provided that he has given reasonable notice of such hearing to his employer.” Although the statute does not specify a private cause of action, the established policy could be cited as a basis for wrongful discharge under Virginia common law, also known as a Bowman claim.