February 2021 Virginia HR Legal Updates

Virginia Approves Permanent COVID-19 Safety and Health Standards

Update Applicable to:
Employers operating within the state of Virginia.

What happened?
On January 12, 2021, the Virginia Safety and Health Codes Board voted 9-4 to approve a permanent safety and health standard (Permanent Standard) requiring employers to take steps to protect workers from Coronavirus (COVID-19).

What are the details?
The Permanent Standard largely mirrors the Temporary Standard that Virginia has previously passed and continues to require employers to, among other things:

  • Group jobs into categories of high, medium, and low exposure risk;
  • Inform employees of the methods of self-monitoring for signs and symptoms of COVID-19;
  • Develop and implement policies for employees with symptoms consistent with COVID-19;
  • Provide notice to specific individuals who have had contact with infected employees;
  • Develop and implement policies and procedures for employees to return to work after testing positive for COVID-19;
  • Create a workplace infection protection program if they have job tasks with risks classified as “very high” or “high,” and/or if they have 11 or more employees with job tasks classified as “medium”;
  • Train workers on COVID-19 and its infection protection program if the employer has job tasks with risks classified as “very high” or “high”; and

Additional important changes have been made to the permanent standard:

  • Using the phrase “close contact” (defined as being within six feet of someone with COVID-19 for a total of 15 minutes or more in a day) rather than just “six feet” when discussing COVID-19 exposure.
  • Explaining face shields are not considered a face covering and can be worn only if a face covering cannot be worn due to a medical condition.
  • Scaling back the requirement to report all positive COVID-19 cases to the Virginia Department of Health. Instead, employers will be required only to report to the Virginia Department of Health “outbreaks” of two or more cases of their own employees in the workplace within a 14-day period.
  • Changing the time-based return-to-work requirement from 10 days with three symptom-free days to 10 days with only one symptom-free day, to be consistent with CDC requirements.
  • Eliminating the requirement for employers to comply with respiratory standards when employees travel together in work vehicles due to shortages of N-95 and other respirators.
  • Explaining that Vermont Occupational Safety and Health Administration will not bring an enforcement action against employers making good faith efforts to secure personal protective equipment in short supply.
  • The Permanent Standard also requires employers with hazards or job-task risks classified as “very high,” “high,” or “medium” to implement certain ventilation controls to air-handling systems under the employer’s control including increasing airflow supply to occupied spaces (provided it does not create a greater hazard), routinely clean and inspect filters, and generate “clean-to-less clean” air movements by reevaluating the positioning of supply and exhaust air diffusers and/or dampers.

You can read more about the safety standard here.

The final permanent safety standard can be found here.

What do employers need to do?
Virginia employers should review the above information and linked resource to help determine the need for any changes to workplace policies.

July 2020 Virginia HR Legal Updates

Virginia Becomes First State to Implement Emergency Workplace Safety Rules Related to COVID-19

What happened?
The Virginia Department of Labor and Industry’s Safety and Health Codes Board created and approved new emergency standards to try and prevent the spread of infectious diseases.

What are the details?
Following an executive order on May 26, 2020, the Virginia Department of Labor and Industry’s Safety and Health Codes Board has created and finalized new rules as of July 27, 2020, for Virginia employers to follow. Some of the new rules include:

  • When multiple employees are occupying a vehicle for work purposes, the employer shall ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry.
  • Where the nature of an employee’s work or the work area does not allow them to observe physical distance requirements, employers shall ensure compliance with respiratory protection and personal protective equipment standards applicable to its industry.
  • All common spaces, including bathrooms, frequently touched surfaces, and doors shall at a minimum be cleaned and disinfected at the end of each shift. All shared tools, equipment, workspaces, and vehicles shall be cleaned and disinfected prior to transfer from one employee to another.

Some entities will not be covered by these standards, such as public schools. The standards are temporary and will expire within six months or the end of the governor’s State of Emergency, or if they are replaced by permanent standards.

The full text of the standards can be found here.

Two articles discussing these changes in more depth can be found here and here.

What do employers need to do?
Employers in Virginia that are bringing employees back into the workplace should review the new standards and update their company policies to stay in compliance.

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Virginia Passes Wage Payment Act Providing New Rights to Employees

What happened?
Virginia Governor Ralph Northam approved a new bill (HB-123/SB-838) that overhauled the Virginia Wage Payment Act’s (“VWPA”) enforcement mechanisms, effective July 1, 2020.

What are the details?
The new rules applied to the VWPA will allow employees to file suit within three years of the cause of action occurring. This does not exclude them from exhausting their administrative remedies beforehand, as well. The employee may still file a claim with the Virginia Department of Labor and Industry. Any private lawsuit filed under the VWPA will also have the option of being filed individually or as a collection action, governed by the same procedures as collection actions under the FLSA. In instances where employers knowingly violate the act or show a reckless disregard for the truth of the falsity of the information (the false pay information provided to the employee), the employee may recover treble damages. Furthermore, the new law requires paystubs to include the following information:

  • The employer’s name and address;
  • The number of hours worked by the employee during the pay period;
  • The employee’s rate of pay;
  • The gross wages earned by the employee during the pay period; and
  • The amount and purpose of any deductions. The full text of HB-123 can be found here.

What do employers need to do?
Employers in Virginia should update their company payroll policies and ensure that their paystubs being issued to employees are compliant.

Summary of Laws with Upcoming Effective Dates

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.

June 2020 Virginia HR Legal Updates

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.

April 2020 Virginia HR Legal Updates

Restrictions on Non-Essential Businesses

What happened?
The governor signed an order with restrictions on non-essential businesses.

What are the details?
Any retail establishment that is a non-essential business must limit all in-person shopping to no more than 10 patrons per establishment.

What do employers need to do?
Comply with the requirements above and ensure staff are trained on proper protocols.

Resources
https://www.littler.com/publication-press/publication/virginia-extends-restrictions-nonessential-businesses

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Anti-Discrimination

What happened?
The Virginia Values Act was signed into law and is effective on July 1, 2020.

What are the details?
The current non-discrimination protections in employment extend to individuals based on their sexual orientation or gender identity. This generally applies to all employers with 15 or more employees, but additional employers are covered under the following circumstances:

  1. More than five employees – Discharge based on race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth, or related medical conditions (including lactation).
  2. More than five, less than 20 employees – Discharge based on age.

What do employers need to do?
Ensure no employment decisions are made based on protected classes as outlined above.

Resources
https://www.littler.com/publication-press/publication/virginia-enacts-new-legislation-offering-additional-protection-workers

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Non-Compete Agreements

What happened?
On July 1, 2020, it will be illegal in Virginia to require low-wage workers to sign non-compete agreements.

What are the details?
Low-Wage Worker: Employee whose average weekly earnings are less than average weekly wage of the Commonwealth. This will be $1,137 per week come July 1, 2020. To calculate the weekly wage, the employer will need to take the weekly average over the previous 52 weeks (or entire length of employment if employed for less than 52 weeks).

Low-wage workers also include interns, students, apprentices, or trainees who make less than the weekly average of the Commonwealth. This law also includes contractors who are paid less than the median hourly wage of the Commonwealth. 

What do employers need to do?
Ensure low-wage workers do not sign non-compete agreements after July 1, 2020. Each violation will be fined as a civil penalty of $10,000.

Post a copy of the law as of July 1, 2020.

Resources
https://www.littler.com/publication-press/publication/virginia-enacts-new-legislation-offering-additional-protection-workers

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Workers Misclassification

What happened?
On April 11, 2020, additional protections were put in place governing worker misclassifications.

What are the details?
Effective January 1, 2021, Virginia will use the IRS guidelines to determine if an individual is an independent contractor or an employee. Violations of this law will be subject to $1,000 civil penalties per misclassified individual.

Effective July 1, 2020, misclassified individuals may bring individual civil suits against an employer. If the court finds in favor of the misclassified individual, the employer may be responsible to pay for all back wages, attorney fees, and benefits.

What do employers need to do?
Ensure staff are classified properly as independent contractors or employees.

Resources
https://www.littler.com/publication-press/publication/virginia-enacts-new-legislation-offering-additional-protection-workers

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Wage Theft

What happened?
The Virginia Wage Payment Act amendment was signed into law in April 2020.

What are the details?
Effective July 1, 2020, an employee will have the right to sue an employer who has not paid all wages due. This covers all employees and employers.

What do employers need to do?
Ensure all employees are fairly compensated for all work completed in compliance with the Virginia Wage Payment Act and the Fair Labor Standards Act.

Resources
https://www.natlawreview.com/article/virginia-wage-payment-act-now-provides-meaningful-remedies-to-wage-theft-victims

January 2020 Virginia HR Legal Updates

New Restrictions on Nondisclosure and Confidentiality Agreements

What happened?
A new Virginia statute limits employers’ use of nondisclosure and confidentiality agreements with respect to “sexual assault” as a condition of employment.

What are the details?
Under the new law, “Nondisclosure or Confidentiality Agreements; Sexual Assault, Condition of Employment” (Va. Code § 40.1-28.01), employers may not require job applicants or current employees to execute nondisclosure agreements that would conceal the details of any “sexual assault” claim an employee may have against the employer. The statute provides that any such agreement will be treated as against public policy and therefore, void and unenforceable.

“Sexual assault” is not defined. However, the statute applies to claims arising under Virginia laws on rape (Va. Code § 18.2-61), forcible sodomy (§ 18.2-67.1), aggravated sexual battery (§ 18.2-67.3), and sexual battery (§ 18.2-67.4).

The statute is narrowly tailored to apply to applicants and current employees. It does not restrict nondisclosure or confidentiality agreements with former employees. Therefore, nondisclosure and confidentially provisions in severance and settlement agreements, which typically are executed when an employee is no longer working for an employer, are not affected by the new law.

What do employers need to do?
Virginia employers should review their employment agreements, nondisclosure or confidentially agreements, and employee handbook provisions that applicants and current employees are required to sign and ensure they comply with the new law.

Bill: https://law.lis.virginia.gov/vacode/title40.1/chapter3/section40.1-28.01/

Article: https://www.jacksonlewis.com/publication/virginia-s-new-restrictions-nondisclosure-confidentiality-agreements-affect-workplace

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New Requirements for Wage Payment Statements Applies to All Employees

What happened?
Effective January 1, 2020, an amendment to the Virginia Payment of Wage Law will now require employers to provide employees with a written statement by paystub or online accounting.

What are the details?
The new required, written statement must include:

  1. The name and address of the employer;
  2. The number of hours worked during the pay period;
  3. The rate of pay;
  4. The gross wages earned by the employee during the pay period; and
  5. The amount and purpose of any deductions.

The law applies to all employees, even those who are not paid on an hourly basis, such as salaried and piece work employees.

The Virginia Department of Labor and Industry (DOLI) also stated that for salaried, piece work employees, and others who are not traditionally paid on an hourly basis, it would not enforce the requirement until July 1, 2020. The delay in the enforcement of this policy applies only to the hours-of-work requirement, not to any other provisions of the Virginia Payment of Wage Law.

What do employers need to do?
Employers affected by the new law should review and update their payroll practices to ensure compliance. They also should review and revise any employee handbook policies dealing with wage statements or timekeeping.

Bill: https://law.lis.virginia.gov/vacode/40.1-29/ 

Article:https://www.jacksonlewis.com/publication/virginia-clarifies-new-requirement-wage-payment-statements-applies-all-employees