September 2021 Virginia HR Legal Updates

Virginia Issues Third Iteration of Emergency COVID-19 Regulations

Update Applicable to:

All employers in Virginia.

What happened?

On August 26, 2021, the Virginia Safety and Health Codes Board adopted revised amendments to the Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19 (the Final Permanent Standard).

What are the details?

The amended Final Permanent Standard became effective on September 8, 2021 and contains several notable changes with some detailed below. The full list can be found in the Final Permanent Standard.

Higher-risk workplaces have been re-defined with the new Final Permanent Standard. The standard defines higher-risk workplaces to include those employers with employees who are not fully vaccinated; employees whose workplace is in a location with substantial or high community transmission, regardless of vaccination status; and otherwise at-risk employees in workplaces where there is heightened risk due to factors, such as where employees who are not fully vaccinated or are otherwise at-risk:

  • are working close to one another.
  • often have prolonged closeness to coworkers or potential frequent contact with members of the public.
  • work in enclosed indoor spaces with inadequate ventilation where other coworkers or members of the public are present.
  • may be exposed to the virus through respiratory droplets or aerosols in the air.
  • engage in a common practice of sharing employer-provided transportation and communal housing or living quarters.

Vaccinations for employees is not required in the Final Permanent Standard, but additional requirements are imposed on employees who have not been fully vaccinated.  When verifying an employee’s vaccination status, the Final Permanent Standard permits an employer to rely on an employee’s representation of being fully vaccinated, without providing proof of vaccination. That said, an employer is not precluded from requiring proof of vaccination.

Subject to certain exceptions, employers must provide and require unvaccinated employees, fully vaccinated employees in areas of substantial or high community transmission, and otherwise at-risk employees (because of a prior transplant or other medical condition) to wear face coverings or surgical masks while indoors, unless their work task requires a respirator or other personal protective equipment.

There has also been a change to the requirements for employers to implement an infectious disease preparedness and response plan. Any health care or health care support employer as well as any employers with higher-risk workplaces with 11 or more employees must have an infectious disease preparedness and response plan. When counting the employees, the employer may exclude fully vaccinated employees.

The Final Permanent Standard can be read here.

An article on the Final Permanent Standard can be read here.

What do employers need to do?

Employers should review the Final Permanent Standard and all of the updated changes and requirements to apply any updates to their applicable policies and procedures to stay in compliance with Virginia’s COVID-19 prevention.

August 2021 Virginia HR Legal Updates

Virginia’s Overtime Wage Act Amended

Update Applicable to:
All employers in Virginia.

What Happened?
On August 10, 2021, Governor Northam signed HB 7001 into law.

What are the details?
The Law amends the Virginia Overtime Wage Act (VOWA), which was effective July 1, 2021. The amendment incorporated the availability of “compensatory time” for certain public sector employees (i.e., leave in lieu of overtime wages) and clarifies that public sector volunteers are not considered “employees” covered by the VOWA.

In addition to this, the Law also restores exemptions for employees in numerous industries, including the following:

  • Certain salesmen, parts men, and mechanics primarily engaged in selling or servicing automobiles, trucks, or farm implements (i.e., the automobile salesperson exemption).
  • Certain computer employees.
  • Employees of specified amusement or recreational establishments.
  • Employees of specified religious or non-profit educational conference centers.
  • Fishery employees.
  • Certain agriculture employees.
  • Employees of newspapers that have small circulations.
  • Switchboard operators employed by … independently owned public telephone companies of a certain size.
  • Seaman employed on non-American vessels.

The law can be read here.

An article on the law can be read here.

What do employers need to do?
Employers should review the amendment here and their payroll policies to continue to stay in compliance with the amendments to the VOWA.

July 2021 Virginia HR Legal Updates

Virginia Passes Medical Cannabis Oil Use 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 25, 2021, Governor Ralph Northam passes House Bill 1862 (HB1862) into law. 

What are the details?
The law, effective July 1, 2021, provides protections to employees who are using cannabis oil with a valid written certification issued by a doctor. These restrictions apply only to the medical use of cannabis oil, not medical marijuana. Employers are prohibited from discharging, disciplining, or discriminating against employees who are lawfully using the cannabis oil. 

However, employers can still take adverse action against an employee for any work impairments caused by the use of cannabis oil and prohibit possession of cannabis oil during work hours. The law also states that nothing in this provision requires employers to commit any act in violation of federal law or that would lead to the loss of a federal contract or federal funding. This may mean that federal contractors who must comply with drug-free workplace laws are exempt from this provision. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information to make any relevant adjustments to their workplace policies, specifically when dealing with employees who may be using cannabis oil while working. 

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Virginia’s Recreational Cannabis Law Passes 

Update Applicable to:
All employers in Virginia. 

What happened?
On April 4, 2021, Virginia’s House and Senate Committees passed Senate Bill 1406 (SB1406) into law. 

What are the details?
Effective July 1, 2021, the law establishes the Virginia Cannabis Control Authority to legalize, tax and regulate recreational marijuana use. This also results in the expunging of all misdemeanor violations and the Virginia State Police is directed to determine which marijuana-related offenses are automatically expunged from state record by July 1, 2025. 

If a person has successfully had a felony marijuana charge expunged to be permanently erased, employers cannot then require an applicant to answer any question related to any arrest, criminal charge, conviction, or civil offense that has been expunged. Although the law does not stop employers from prohibiting marijuana in the workplace or drug testing. 

The law can be read here

An article covering the law can be read here. 

What do employers need to do?
Employers should review the law and information here to make any relevant adjustments to their workplace policies due to the updated cannabis laws. The law firm, Jackson Lewis P.C., recommends that employers should, at minimum, consider how they want to message their expectations to their workforce considering the swirling—and often contradictory—information and messages regarding cannabis use and the workplace. 

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Virginia’s Overtime Wage Act 

Update Applicable to:
All employers in Virginia. 

What happened?
On March 31, 2021, Governor Ralph Northam signed the Virginia Overtime Wage Act (VOWA) into law. 

What are the details?
VOWA (Va. Code § 40.1-29.2) will be made effective July 1, 2021 and will make significant alterations to employer’s wage and hour obligations. The bill will impact how overtime for both hourly and salary non-exempt workers are calculated. 

Hourly employees will now have their overtime rate obtained based on the VOWA’s regular rate calculation. The calculation will be the employee’s hourly rate plus other wages, such as commissions or non-discretionary bonuses paid or allocated during that same workweek, minus any applicable FLSA exclusions and divided by “the total number of hours worked in that workweek”. If the employee worked over 40 hours in the fixed workweek, then the employee must receive 1.5 times the calculated regular rate of pay for all hours worked by the employee over 40 hours. 

An example of the calculation is:

  • Regular Wages: $15 x 50 = $750
  • Wages + Bonus: $750 + $200 = $950
  • Regular Rate: $950/50 = $19/hour
  • Overtime Rate: $19 x 1.5 = $28.50/hour 

For non-exempt employees paid on a salary or other regular basis, their regular rate is defined as one-fortieth of all wages paid for the workweek, include wages, commissions, and non-discretionary bonuses. The employer would then take the employees’ wages earned that workweek, divide it by 40, and then for any hours worked by the employee over 40 in that workweek, pay 1.5 times that calculated regular rate for all overtime hours. 

An example of the calculation is:

  • Regular Rate: $1,200/40 = $30/hour
  • Overtime Rate: $30 x 1.5 = $45
  • Overtime Pay: $45 x 10 = $450 

The Act can be read here

Articles on the Act can also be read here and here. 

What do employers need to do?
Employers should review the law to be aware of the necessary requirements and make any changes to their relevant policies including pay and overtime.

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Virginia’s Reasonable Accommodation Law Enacted

Update Applicable to:
All employers in Virginia with more than five employees. 

What happened?
On February 25, 2021, Virginia’s General Assembly passed House Bill 1848 to expand protections given by the Virginia Human Rights Act (VHRA). 

What are the details?
Effective July 1, 2021, employers are required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability if necessary to assist that person in performing a particular job. Accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship. Employers will also be required to update employee handbooks with information that covers an employee’s right to reasonable accommodation for disabilities. 

Employers are required to display the notice poster in a conspicuous location on work premises. The Division of Human Rights of the Department of Law is tasked to develop a notice within 120 days of the effective date.  Employers must directly provide information about this law to new employees and any employee within 10 days of such employee providing notice to the employer that they have a disability. 

Virginia employers also will be prohibited from: 

  • Taking any adverse action against an employee who requests or uses a reasonable accommodation.
  • Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee.
  • Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability.
  • Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.

If a Virginia employer wants to deny an accommodation due to an undue hardship, the employer must consider: 

  • Hardship on the conduct of the employer’s business, considering the nature of the employer’s operation, including composition and structure of the employer’s workforce.
  • Size of the facility where employment occurs.
  • Nature and costs of the accommodations needed, taking into account alternative sources of funding or technical assistance.
  • The possibility that the same accommodations may be used by another prospective employee.
  • Safety and health considerations of the person with a disability. 

The Bill can be read here

An article on the Bill can be read here. 

What do employers need to do?
Employers should review the Bill and their policies to ensure they are in compliance with providing accommodations to employees that are covered by this law.


 

June 2021 Virginia HR Legal Updates

Virginia Employee Medical Cannabis Oil Use Protections Law Passed

Update Applicable to:
All employers in Virginia

What happened?
On March 25, 2021, House Bill No. 1862 was passed.

What are the details?
The bill has been passed as of March 25, 2021, and will be effective as of July 1, 2021. This will prohibit an employer from discharging, disciplining, or discriminating against an employee based on the employee’s lawful use of cannabis oil. Employers will need to confirm if a positive marijuana test result is associated with medical cannabis oil use as the law includes cannabis oil that contains THC.

The law will not restrict an employer’s ability to prohibit possession during work hours or take any adverse employment action for work impairment caused by use of the oil. It will also not require an employer to commit any act that would cause the employer to be in violation of federal or result in the loss of federal funding or a contract.

The bill can be read here.

An article written on the act is found here and here.

What do employers need to do?
Employers should review the information provided above and update their workplace policies to ensure compliance with the new law.

May 2021 Virginia HR Legal Updates

Virginia Mandates Paid Leave for Certain Healthcare Workers

Update Applicable to:
Employers with home health workers as employees in Virginia.

What happened?
House Bill 2137 has gone into effect, requiring employers to provide paid sick leave to their home health workers.

What are the details?
Home health workers are defined as employees who, “provide personal care, respite, or companion services,” to patients enrolled in Medicaid. The bill provides that employers must offer paid sick leave to these employees. The paid sick leave will accrue at a rate of one per 30 hours worked. Any unused hours must be allowed to carry over to the following year in which it accrued. The employee may take the leave to care of their  health needs, or for a family member who is sick. Family is defined as “any other individual related by blood or affinity whose close association with an employee is the equivalent of a family relationship.” Employers may not retaliate against employees for using this leave. Employers may request notice beforehand of the need to use paid sick leave, within reason. However, this procedure must be provided in writing. Employees may still use paid sick leave for unforeseeable instances. Employees must provide reasonable documentation to substantiate the need for the leave if the duration is three or more days in duration.

House Bill 2137 can be found here.

What do employers need to do?
Employers should update their leave policy for the applicable employees to accommodate this new requirement.

April 2021 Virginia HR Legal Updates

Virginia Passes Overtime Legislation

Update Applicable to:
All employers operating within Virginia.

What happened?
On March 30, 2021, Governor Northam signed into law the Virginia Overtime Wage Act (HB 2063).

What are the details?
For employees paid on an hourly basis, the regular rate will be the employee’s hourly rate in addition to other wages paid or allocated to that workweek, minus any applicable federal exclusions, divided by the total number of hours worked in that workweek. For Virginia employees paid on a salary or other regular basis, however, the regular rate will be calculated as “one-fortieth of all wages paid for that workweek.”  This new standard appears to preclude employers from paying non-exempt employees a fixed salary that covers straight-time wages for hours in excess of 40 hours in a workweek, or from utilizing the “fluctuating workweek” method of calculating overtime under the FLSA, and will require the use of a higher hourly rate for calculating overtime liability for non-exempt salaried employees in many situations. 

An article covering the ramifications of this calculation change, including an example, can be found here.

What do employers need to do?
Virginia employers should update their payroll practices, to ensure that they are paying employees, especially salaried non-exempt, the correct amount of overtime pay.

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