by Don Walsh
As Virginia employers emerge from a COVID shelter, they are met with a long list of new and updated employment laws which are more in line with neighboring jurisdictions protections. Here is a list of some of the more noteworthy laws taking effect on July 1.
- Adopting protections similar to Maryland, Virginia amended its wage payment law to permit employees to sue their employer directly for failure to pay wages (including through a collective action with similarly situated co-workers) for any owed wages, liquidated damages, prejudgment interest, and attorneys’ fees and costs. For employers found to knowingly failing to pay owed wages, the employee can recover “triple the amount of wages due and reasonable attorney fees and costs.” Consistent with the enforcement of other employment protections, retaliation against employees for exercising such rights is prohibited although it cannot be enforced in a private cause of action.
- To avoid problems with misclassification of employees as independent contractors, Virginia has adopted protections similar to those recently adopted in California and created a “presumption” of employee status and a new private right of action. Any individual who performs services for remuneration is presumed to be an employee unless the company can prove the individual is an independent contractor pursuant to IRS guidelines. In addition to protection against retaliation, misclassified individuals will have a private cause of action, can recover wages, benefits and attorneys’ fees.
- Non-compete agreements entered into after July 1 are now unenforceable against “low-wage employees” (making less than $59,124/year) and exposure to substantial monetary liability. This law does not impact nondisclosure agreements and confidentiality protections imposed by employers. Employers will need to post this requirement where other required workplace posters are posted.
- The Virginia Human Rights Act (VHRA) now provides greater jurisdiction over more employers and greater protection for more workers.
- Adopting new standards which make the Virginia State law protections more consistent with federal protections under Title VII, the VHRA now applies to all private employers with 15 or more employees. Smaller employers with at least 6 employees remain responsible for claims of discriminatory discharge.
- In addition to traditionally protected classes of race; color; religion; national origin; sex; and pregnancy, childbirth, and related medical conditions, the amendments to Virginia law now protect sexual orientation, gender identity, and veteran status. Important to note, race discrimination is now defined to also include traits historically associated with race such as “hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”
- Before pressing their claims in state court, employees must exhaust their administrative remedies by first filing an administrative charge either with the Virginia Division of Human Rights (VDHR), or the U.S. Equal Employment Opportunity Commission (EEOC).
- Pursuant to the amendments, the Act also provides unlimited compensatory damages, punitive damages, attorneys’ fees, costs, and injunctive relief.
- Employers with 5 or more employees must provide reasonable accommodations (absent undue hardship) due to pregnancy, childbirth, and related medical conditions, including lactation. These accommodations include frequent or longer breaks. Employers must post information regarding these rights in a conspicuous location in the workplace, include the information in handbooks, and, importantly, provide the information to new employees and existing employees 10 days after she informs her employer she is pregnant.
- Virginia also adopted a new whistleblower law protecting a broad range of activities and generally prohibiting employers from retaliating against an employee who engages in activities which are intended in good faith to stop or prevent and unlawful employment practice occurring or being investigated. As is usually the case, employees cannot claim protection if the employee’s disclosure or activities is false or in reckless disregard of the truth, the employee discloses privileged information, or the disclosure by the employee is illegal.
- Consistent with protections under the National Labor Relations Act, employers are also now prohibited from retaliating against employees who inquire about, discuss, or disclose wages or other compensation information.
- Employers may no longer ask employees or applicants to disclose information concerning any arrest, criminal charge, or conviction relating to simple marijuana possession.
For more information on the impact of these new laws to your employment practices, feel free to reach out to our Employment & Labor Law Team.