Employer Protection

A new Virginia statute aiding employees who have been victims of a crime requires their employers to grant them leave from work to be present at any criminal proceedings in certain cases. The law, which took effect July 1, 2007, however, may have a much greater impact than most employers anticipate. The expansive definitions used under the statute augur broad coverage and a likely impact on employee staffing.

A "criminal proceeding" to which the act applies, for example, covers not only to a criminal trial, but to virtually all judicial proceedings that have any connection to the crime, from beginning to end:

More significant for employers is the broad definition of "victim" which applies under this statute, and therefore defines the class of employees entitled to obtain leave from work. The class of employees covered under this law includes not only the specific individual who has suffered physical, psychological or economic harm as the result of a felony or assault, stalking, sexual battery, maiming or DUI, but also (a) the spouse or child of such a person, (b) the parent or legal guardian of such a person who is a minor, and (c) where the employee is physically or mentally incapacitated, or the victim of a homicide, the victim's spouse, parent, sibling or legal guardian.

As part of a comprehensive effort by the legislature to protect victims of crime, the new statute extends certain job protection to crime victims. Employers may not refuse to hire, discharge from employment, or discriminate against an individual in compensation or other terms, conditions, or privileges of employment because the individual exercises his or her right to leave work to attend a criminal proceeding. (This is similar to preexisting Virginia law that prohibited employers from discharging or taking other adverse personnel action against any employee summoned to jury duty or to testify as a witness in court.)

The statute however, does reflect some concern for the impact it may have on employers. Employers are not required to compensate an employee for leaves under this statute (but salaried exempt employees should not have their pay docked for the absence). Furthermore, an employee taking leave under this statute must provide the employer with a copy of a form the victim receives from police after being identified as the victim of a crime, and a copy of notices the victim receives of each scheduled criminal proceeding. Finally, the employer is entitled to limit the leave provided under this statute if the employee's leave will create an undue hardship to the employer's business (defined as significant difficulty and expense to a business, taking into consideration the size of the employer's business and the employer's critical need of the employee).

Since the statute does not specify or limit the relief available to an employee, and because the courts and juries are traditionally very protective of individuals in such circumstances, employers may be at risk of incurring very substantial punitive damages awards in the event employees are discharged in violation of this new law.

Jackson Lewis attorneys are available to answer inquiries about the new law and assist employers in achieving compliance with its requirements.

New Virginia Statute Grants Leave to Employee Victims of Crimes