Virginia Business Law Blog

In American Trucking Association v. Stallings, issued on Feb. 23, 2010, the Virginia Court of Appeals upheld a decision by the Workers’ Compensation Commission finding that an employee who is injured outside of an employer’s office building on her way in to work is eligible for compensation under the “extended premises” doctrine.

Stallings involved an employee who was injured from a slip on an icy sidewalk while returning to work from her lunch break. The fall occurred in an area that was not controlled or owned by her employer, but which an employee was necessarily required to traverse in order to reach the office space. Because the Court found that the employee was returning to her place of employment and was crossing an area she was rightfully allowed to pass through, the injury occurred on the employer’s extended premises.

An injury incurred while going to or from work is generally not compensable under Virginia’s Workers’ Compensation Act. However, there is an important exception to this rule under the “extended premises” doctrine. This means that if an employee is injured in a common area of her place of employment, such as “common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, footbridges, driveways, or passageways,” the injury does fall under the Workers’ Compensation Act. Whether or not the employer owns or maintains the portion of its extended premises where the accident occurred is irrelevant, so long as the employee as a right of passage over the area, or in the Court’s words, “something equivalent to an easement.”

In determining whether the extended premises doctrine covers a given location, courts look at whether the area is “in such proximity and relation as to be in practical effect a part of the employers’ premises.” Courts probably will find this standard to be satisfied where the area constitutes “an essential means of ingress and egress from the public right-of-way to [the employer's] place of business.”

While the most common scenario involves employees injured in the common areas of an office building which is owned and operated by a third party, there is no requirement that the injury occur on private premises for the employee to be eligible for workers’ compensation. Even if the slip-and-fall occurs on a public sidewalk outside of the office building’s entrance, if the employee was required to cross that portion of the sidewalk in order to access the building, the accident is likely to be covered.

The take-home message for employers: If an employee has no choice but to cross an area in order to reach your office, it doesn’t matter whether you own it or control it. That section is a part of your employment premises for purposes of Workers’ Compensation.

With at-will employment, employers are within their rights to fire employees who fail to agree to company policies. This is true regardless of whether those policies are reasonable or unreasonable. The Virginia Court of Appeals recently decided, however, that although an employer may choose to terminate an employee who is unwilling to agree to an unreasonable policy, the employee’s refusal will not constitute “misconduct” so as to bar a claim for unemployment benefits.

In Williamson v. VEC (March 23, 2010), Plaintiff Williamson refused to sign his employers’ company vehicle policy. The policy went far beyond what a standard company vehicle policy might require, and contained a clause stipulating that employees would be bound by any company policies “that might be enacted in the future.”

Instead of agreeing to the policy as written, Williamson proposed his own policy to the employer, which was substantially similar in form and content, but clarified some of the parameters of when liability would be assigned, and removed the “future enacted policies” clause. His employer then promptly fired him, stating it was less due to any objections to the proposed policy and more to the fact that Williamson had thought he was entitled to write company policy himself. Williamson then tried to claim unemployment benefits, and the case was appealed up to the Court of Appeals.

Under Va. Code § 60.2-618(2)(a), unemployment benefits are not available to an employee who has lost their position “if the [Virginia Employment] Commission finds such individual is unemployed because he has been discharged for misconduct connected with his work.” Although purposeful violation of a company rule that is “reasonably designed to protect the [employer's] legitimate business interests” constitutes misconduct, the Court of Appeals found in this case that the policy the employer had instituted “far exceeded [the] employer’s interest in the operation of its vehicles.” It was therefore not a reasonable means of promoting any legitimate business interest, and it was not tantamount to misconduct to refuse to sign it.

As the Court stated, “The proposed policy further binds all employees to ‘any policies now in place or that might be enacted in the future.’ … One who agrees to abide by an undisclosed future policy as a condition of continued employment would be foolhardy.” Of course, the employer had not acted improperly by asking the employee to sign the foolhardy agreement, nor by firing the employee when he declined to do so; the employer simply could not claim that the termination had been for misconduct.

Another article in this week’s Virginia Lawyers Weekly reports on how the Virginia Workers’ Compensation Commission is currently considering reversing the way it has handled termination of benefits for injured workers for several decades.  Specifically, it has been customary practice that when an injured worker returns to work, the employer would file a request with the Commission for a ruling on whether the employer could terminate payment of benefits, and while that request was pending the Commission would allow the employer to suspend those payments pending the ruling.  If the Commission ultimately ruled for the employee, the employer had to pay the with-held benefits plus interest — but that might not be for a year while the Commission considered the request.  In the meantime the employee went without benefits, and could have suffered adversely as a result of the reduced income.

The article details how one workers’ compensation lawyer, Peter Sweeny, devised a way of getting around that practice on behalf of his employee clients: he’d obtain a certified copy of the original award and docket it in the local circuit court as a judgment against the employer, and then institute collections proceedings against the employer to recover the suspended benefits.  Three cases in which he did this are currently being considered by the Commission. 

Naturally, employers would rather that the Commission continue the practice of regularly suspending benefits payments and put an end to Sweeny’s way of dodging the suspension.  Employers also have the realistic concern that if the Commission rules for the employer and determines that the employee was not entitled to benefits the employer had been paying out during the review process, there will be little likelihood of the employer ever seeing that money again.  But the case raises interesting due process concerns for employees.  So the odds appear to be that the Commission will decide to determine future suspensions on a case-by-case basis instead of always allowing employers to suspend payments.