Layoff Rights for Virginia Employees

Losing a job is stressful, especially when it happens through no fault of your own. While Virginia employers are generally free to lay off workers or close facilities, employees do have certain rights.

This article explains what legal protections exist for Virginia employees facing layoffs and what to expect with your final paycheck and benefits.

Do Virginia Employees Have Layoff Protection?

Virginia is an at-will employment state. This means that, unless you have an employment contract, a union agreement, or another specific protection, your employer can let you go at any time for almost any lawful reason.

However, employees may still have rights through union contracts, the federal WARN Act, or company policies that provide additional protections. Unlike some states, Virginia does not have a mini-WARN law that expands on federal protections.

The WARN Act in Virginia

The Worker Adjustment and Retraining Notification (WARN) Act is a federal law that requires certain employers to provide 60 days written notice before large-scale layoffs or plant closings.

Who Is Covered by WARN

WARN applies only to larger employers. It covers businesses with at least 100 full-time employees, or 100 employees who together work at least 4,000 hours per week. An employee is considered full time if they work 20 or more hours per week and have been employed for at least six of the 12 months before notice is required.

What Layoffs Trigger WARN

WARN applies only to mass layoffs or plant closings that affect large groups of employees. A mass layoff means job losses at a single site for at least 500 full-time employees, or for 50 to 499 full-time employees if that number makes up at least one-third of the workforce.

A plant closing occurs when a facility, site, or operating unit shuts down, causing at least 50 full-time employees to lose their jobs within a 30-day period.

Notice Requirements

Covered Virginia employers must provide 60 days advance notice to employees, or to their union representative if they are union members.

The notice must include when layoffs will begin, whether they are temporary or permanent, and the employee's termination date, along with other details.

Exceptions to WARN

Employers may provide less than 60 days notice in limited circumstances:

• Unforeseeable business circumstances. Shorter notice is allowed if the reasons for the plant closing or layoff could not reasonably be foreseen when the employer should have given 60 days notice.
• Natural disasters. Shorter notice is allowed if the layoff or plant closing results from a natural disaster.
• Faltering company. An employer may give less notice if it was actively seeking business or investments that would have allowed it to postpone or avoid the plant closing altogether, and it reasonably believed that giving notice as required by WARN would have prevented the investment. This exception applies only to plant closings, not mass layoffs.
• Strikes and lockouts. An employer does not have to give advance notice of a mass layoff or plant closing that results from a strike or lockout.
• Temporary projects or facilities. An employer doesn't have to give notice if it lays off employees who were hired only for a temporary project that has been completed, or to work in a temporary facility that is closing. This applies only if employees knew when they were hired that their jobs were temporary.

Employers using these exceptions must still provide as much notice as possible and explain why the full 60 days was not given.

If Your Rights Are Violated

The federal Department of Labor is responsible for interpreting and explaining WARN through regulations. However, the agency has no authority to investigate complaints, issue citations, or file lawsuits against employers that violate the law. The only way employees can enforce their WARN rights is by filing a lawsuit.

Workers who do not receive the notice required by WARN can be awarded all compensation and benefits lost due to the violation, up to the full 60 days WARN requires. This amount is reduced by any wages earned or severance payments the employer made voluntarily during that time. For example, if an employer gave no notice under WARN but paid employees two weeks of severance, it could be required to pay 46 days' worth of damages.

If your employer violates WARN, you should consult with an experienced Virginia employment attorney. Employees who win a WARN lawsuit are entitled to attorney fees, which gives attorneys an incentive to take a good case. Because the damages available to any one employee are relatively low, an attorney might suggest going forward as part of a class action, on behalf of all of the employees who did not get the notice required by WARN.

Other Rules for Laid-Off Employees in Virginia

In addition to WARN rights, Virginia employees should be aware of other rules that apply when employment ends.

Final Paychecks

Virginia law requires that laid-off or terminated employees receive their final paycheck by the next regularly scheduled payday. This must include all wages earned through the last day of work.

Accrued Vacation or Paid Time Off

Virginia law doesn't require employers to pay out unused vacation or paid time off unless the employer's policy or contract promises it. Check your employee handbook, contract, or written policies for details.

Sick Leave and Holiday Pay

Unused sick leave generally doesn't have to be paid out in Virginia unless your employer's policy states otherwise. The same is true for holiday pay. If you worked on a holiday and earned wages for it, that pay must be included in your final paycheck, but you are not entitled to payment for future holidays.

Health Insurance

If your employer had 20 or more employees, you may be entitled to continue your health insurance coverage under federal COBRA rules, though you will likely have to pay the premiums yourself.

Some smaller employers in Virginia may be subject to state continuation coverage requirements. Your employer should provide information about your options.

Unemployment Benefits

Laid-off Virginia employees are usually eligible for unemployment insurance benefits, as long as they lost their jobs through no fault of their own and meet work history requirements. You can apply through the Virginia Employment Commission.

Severance Pay

Virginia employers aren't required to provide severance pay unless they have promised it in a contract, policy, or severance agreement. Some employers may offer severance in exchange for a release of claims.

FAQs About Layoffs in Virginia

Does Virginia have its own layoff notice law?

No. Virginia doesn't have a mini-WARN law. Only the federal WARN Act applies.

How much notice must my employer give before a layoff?

If WARN applies, employers must give 60 days notice. Otherwise, no advance notice is legally required unless promised in a contract or policy.

Do small employers have to follow WARN?

No. Employers with fewer than 100 full-time employees are not covered by WARN.

Will I get paid for unused vacation if I am laid off in Virginia?

Only if your employer's policy or contract provides for it.

Does my employer have to pay out unused sick leave?

No, unless your employer's policy specifically requires it.

When will I get my final paycheck?

By your next regularly scheduled payday after your last day of work.

Am I eligible for unemployment if I am laid off?

Yes, most employees laid off through no fault of their own qualify for unemployment benefits.

Can I sue my employer for violating WARN?

Yes. Employees can recover lost wages and benefits for up to 60 days, minus any severance or wages already paid.

Does my employer have to offer severance pay?

No. Severance is only required if promised in a contract or company policy.

Can union contracts change layoff rights?

Yes. Union agreements often provide greater protections, such as rehire preferences or bumping rights.