Virginia is a very pro-employer state; unless you have a written contract, you are almost surely an “at will” employee, which means that your boss could fire you for almost any reason, no matter how silly or irrelevant to work performance. The exception to this rule is that if you are being fired for an illegal reason — because of your race, gender, religious preference, age, etc. — you may be able to file a claim for employment discrimination. There are some tight time deadlines on these cases, so if you think that you have been discriminated against on an illegal basis, please call us ASAP.
If you are fired for no good reason, you generally can’t sue, though you may be entitled to collect unemployment compensation.
There are also issues that come out of workplace conditions. For example, if you are a woman working in a place where the boss makes sexually suggestive or demeaning comments to the female employees, this may rise to the level of sexual discrimination even if you are not actually fired. One caution — if your boss is an equal opportunity jerk — meaning that he is insulting to both men and women — you may not be able to sue. We have represented both employers and employees in sex discrimination claims, and both employers and employees in cases in which “workplace bullying” is alleged. It’s a tough area of the law.
Although you may wish to make a claim that your boss is a “workplace bully,” at the moment that is not something that allows you to sue unless the “bullying” is so extreme as to rise to the level of the intentional infliction of emotional distress (IIED). The threshold problem in any such suit is the Worker’s Compensation statutes; in Virginia, if you are injured in some way by a co-worker (including a boss), your remedy for that injury may be to bring a Worker’s Compensation claim. The problem is that Worker’s Compensation only covers medical bills and lost wages, and if you didn’t get fired, you have no lost wages. There is no recovery under the Worker’s Comp statutes for pain and suffering or emotional damages. The way around this is to show that your psychological distress over your treatment doesn’t qualify as a workplace “injury” in the meaning of the Worker’s Compensation statutes because an “injury”, under those laws, must happen all at one time. In most cases, this helps employers — if you hurt your back gradually on the job, you can’t file a Worker’s Comp claim, but if you felt a sudden “pop” in your back, you might be able to. Here, a gradual infliction of emotional distress means that you can’t file a Worker’s Comp claim, but that does mean that you might be able to make a non-Worker’s Comp claim. A 1994 Va. Supreme Court case, Lichtman v. Knouf, 238 Va. 138, 445 S.E.2d 114 (1994), says that most cases of IIED do not qualify as an “injury by accident” within the meaning of the Worker’s Comp statute.
The problem here, though, is that IIED is a very high standard to meet. It is not enough to say, “He made me so mad.” You have to be able to say, “I had a nervous breakdown.” And it is not enough to say, “He was such a jerk.” You have to be able to say, “I can prove that he was doing what he was doing for the express purpose of driving me nuts.”
In some cases, your boss’s behavior maybe completely obnoxious and morally indefensible, but we would have to tell you that you have no lawsuit, and that your best remedy is to go find another job.
If you think you might have a claim, call us at 434-293-8185.
