D.C., Maryland, and Virginia have recently passed many new pieces of state legislation in the area of employment law. A common theme that has emerged in each new regulation or statute is an employee-friendly approach. Hiring a trusted employment law attorney can be beneficial when understanding this sometimes complex topic. See below for some key issues to watch out for as a local employer:

Non-Compete Provisions in Washington, D.C.

On January 11, 2021, the D.C. council approved proposed legislation known as the Ban on Non-Compete Agreements Amendment Act of 2020, D.C. Act 23-563 (the “Non-compete Ban Act”). The bill, with a couple of exceptions, states that “[a] non-compete provision contained in an agreement that was entered into on or after the applicability date of this title between an employee and an employer shall be void as a matter of law and unenforceable.” The Non-compete Ban Act bars Washington, D.C. employers from requiring that employees sign a non-compete agreement, defined as “a provision of a written agreement between an employer and an employee that prohibits the employee from being simultaneously or subsequently employed by another person, performing work or providing services for pay for another person, or operating the employee’s own business.” Non-compete agreements that are already in place when the new law goes into effect do not appear to be affected by the Non-compete Ban Act. There is also a posting requirement for all employers within 90 days of the bill’s passage. The narrow exceptions to the ban include volunteers, babysitters, certain members of religious organizations, and “medical specialists” – licensed physicians who have completed a medical residency and earn at least $250,000 annually. The bill also includes an anti-retaliation provision meant to protect employees who inquire about an employer’s non-compete policy or fail to comply with a potentially unlawful policy. The bill also introduces a new private right of action where, if approved, an employee who feels subjugated to a violation of the Non-compete Ban Act can file a civil action or an administrative complaint with the D.C. Mayor’s office. Understanding the latest updates in employment law is crucial. Hiring an experienced employment law attorney can help assist you in understanding these changes, as well as ensure you are following them.

Virginia Values Act

The Virginia Values Act has also expanded the number of employers covered by the original Virginia Human Rights Act (the “VHRA”). In cases of unlawful termination, the VHRA now applies to all Virginia employers with five or more employees (except in cases of unlawful discharge on the basis of age, where it applies only to Virginia employers with more than five but fewer than 20 employees). In cases relating to adverse actions other than termination, the VHRA applies to all Virginia employers with 15 or more employees. Va. Code § 2.2-3905.

How to Fire People (And How Not To)

While not a new statute, it is always good to review termination decisions. The first thing to consider when terminating an employee is the employee handbook or personnel manual; employers must review what their already existing disciplinary procedure is. Next, inquire whether there is a medical issue that may be impacting the employee’s work performance. Take extra caution to figure out whether reasonable accommodations under the ADA or unpaid leave under the FMLA may be required if you are a covered employer.

If you don’t already have one in place, consider implementing a 60-day performance improvement plan where the employer and the employee can both align and track the performance and behavior of the employee before determining whether the employment relationship should continue. A probationary period may also be a good idea to provide test grounds for both the employer and employee. If a probationary period is used, employers should make sure to still provide feedback to the employee during regular intervals. During the probationary period, employers should be keen on documenting every fact and scenario related to the employee’s performance instead of using generalizations. Remember to address the performance issue(s) rather than attacking the employee. Remove any emotion from the conversation. Finally, provide clear performance objectives to meet at the end of the 60-day plan and offer the employee a chance to respond. Employee responses only boost the conversation and ensure that the performance improvement plan had a chance to succeed in avoiding termination.

The D.C. region has seen a flurry of new legislation in recent months. All local employers must remain aware of the recent changes in the law to ensure full compliance.