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02 Jul

June 2020 Virginia HR Legal Updates

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Summary of State Laws (Q1 & Q2 2020)

Hair Discrimination
Effective July 1, 2020, an amendment to the Virginia Human Rights Act (VHRA) provides that race discrimination includes discrimination based on traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locs, and twists.

Pregnancy Discrimination and Lactation Accommodation
Effective July 1, 2020, employers with five or more employees are prohibited from discriminating against employees based on pregnancy, childbirth, or related conditions, including lactation. Employers must also provide reasonable accommodations for employees that are pregnant or have related conditions, including providing lactation breaks.

A covered employer is required to conspicuously post a notice and include information in an employee handbook regarding the prohibition against unlawful discrimination and the right to reasonable accommodations. This information must be provided to:

  • All existing employees by October 29, 2020
  • New employees upon commencement of employment
  • An employee who discloses their pregnancy within 10 days after disclosure to the employer

Discrimination Protections
Effective July 1, 2020, the Virginia Values Act (VVA) amends the VHRA by:

  • Extending discrimination protections to employees and applicants based on sexual orientation, gender identity and veteran status
  • Expanding the definition of “employer” and extending liability under state law
  • Expanding the list of prohibited actions
  • Detailing lawful employment practices
  • Revising enforcement procedures
  • Expanding damage provisions

Wage Statement
Effective January 1, 2020, employers must provide a written statement to employees each pay day that includes:

  • The employer’s name and address
  • Hours worked (Effective July 1, 2020, this is only required if employee is paid on the basis of (1) the number of hours worked or (2) a salary that is less than the standard salary level adopted by

regulation of the Department of Labor pursuant to the FLSA. Previously, the Virginia Department of Labor and Industry (DOLI) stated that enforcement of the hours worked requirement would be delayed until July 1, 2020 for salaried, piece work, and other employees not traditionally paid on an hourly basis.)

  • Rate of pay
  • Gross wages
  • Amount and purpose of any deductions

Previously, employers were only required to provide, on an employee’s request, a written statement of gross wages and deductions.

Effective July 1, 2020, the paystub must include sufficient information to enable the employee to determine how the gross and net pay were calculated.

Wage Payment
Effective July 1, 2020, employees have a right to sue an employer in Virginia state court to recover unpaid wages. Employees may sue individually, jointly, or in a collective action. If the court finds that the employer knowingly and/or willfully failed to pay the wages, damages may be tripled and civil and/or criminal penalties may also apply.

In investigating an employee’s complaint, if the DOLI has a reasonable belief that the employer failed to pay wages to other employees, the DOLI may expand its investigation.

Employers are prohibited from terminating or otherwise discriminating against an employee because the employee has filed a complaint about non-payment of wages, caused to be instituted any proceeding under wage payment laws, or testified or is about to testify in a wage payment law proceeding.

Wage Disclosure
Effective July 1, 2020, employers are prohibited from discharging or retaliating against an employee for inquiring about, discussing with, or disclosing to another employee any information about either the employee’s own or another employee’s wages or other compensation or filing a related complaint with the Department of Labor.

Employee Classification
Effective July 1, 2020, employers cannot retaliate against employees or independent contractors for reporting employee misclassification or because an appropriate authority requests or subpoenas them to participate in a related investigation, hearing, or inquiry.

In addition, an individual not properly classified as an employee can sue their employer for failing to properly classify them as an employee if the employer had knowledge of their misclassification.

Whistleblower Protection
Effective July 1, 2020, employers are prohibited from retaliating against an employee because of the employee:

  • Reports a violation of any federal or state law or regulation to a supervisor, governmental body, or law enforcement official
  • Is requested by a governmental body or law enforcement official to participate in an investigation, hearing, or inquiry
  • Refuses to engage in a criminal act or follow an employer’s order that violates any federal or state law or regulation
  • Participates in an investigation into any alleged violation by the employer of federal or state law or regulation

Criminal Background
Effective July 1, 2020, employers are prohibited from requiring job applicants to disclose information concerning any arrest, criminal charge, or conviction for possession of marijuana. An applicant does not have to answer any questions about it or provide such information given such records are no longer open for public inspection.

Noncompete Agreement
Effective July 1, 2020, employers are prohibited from entering into, enforcing or threatening to enforce a covenant not to compete against low-wage employees (i.e., employees who earn less than the average weekly wage in Virginia).

Election Officer Leave
Effective July 1, 2020, Virginia’s election officer leave law is expanded to protect local electoral board members and assistant general registrars (previously only election officers). In addition, employers are prohibited from requiring an employee to use sick leave or vacation time for an absence from work to serve at a polling place on election day or a meeting to determine election results.

New Hire Reporting
Effective September 1, 2020, newly hired independent contractors must be reported according to the same requirements as newly hired employees if they have not previously had a contract with an employer or have previously entered into a contract with an employer and have received a payment based on the contract after receiving no payments for at least 60 consecutive days.