[co-author: Jim Conlin]

As sophisticated employers know, an employer must track and comply with developments not only in federal law, but also state and local law. This blog post details key changes in employment laws in the Commonwealth of Virginia in 2019, as well as upcoming changes in 2020, including new personnel records disclosure and paystub requirements.

Employers Must Provide Employment Records Upon Employee Request

As of July 1, 2019, all employers in Virginia must turn over employment records upon the written request of a current or former employee, or that employee’s attorney. The records must show (i) the employee’s dates of employment; (ii) the employee’s wages or salary during employment; (iii) the employee’s job title and job description during employment; and (iv) any injuries sustained by the employee during employment (if applicable). See Va. Code §8.01-413(B). Upon written request, employers have 30 days to comply or provide written notice of delay in responding. That notice buys the employer another thirty days and must specify the reason for the delay. Should the employer fail to comply with the written request for a personnel file, the employee can issue and enforce a subpoena, and willful noncompliance may result in the employer being ordered to pay fees associated with enforcement. For further information, please see our blog post on this law.

#MeToo Animates Legislature: NDAs That Operate to Conceal Details of Sexual Assault Claims Void

As of July 1, 2019, employers are forbidden from requiring employees or prospective employees to execute or renew provisions in non-disclosure agreements that have the purpose or effect of concealing details of claims or rape, forcible sodomy, aggravated sexual battery, or sexual battery as a condition of employment. Va. Code § 40.1-28.01. Any existing provisions executed by employees or prospective employees are void and unenforceable as contrary to public policy. As a result, no employer can enforce the terms of any NDA executed by an employee or prospective employee where doing so would prohibit the employee from disclosing the sexual assault offenses mentioned above. Arguably, this provision does not apply to a separation agreement or other agreement executed in connection with a separation from employment (since such agreement would not be entered into “as a condition of employment”), however, this view has not yet been tested in the courts.

Virginia Enacts New Paystub Law

Effective January 1, 2020, Virginia requires employers to provide employees with a detailed paystub every pay period. The paystub, which can be in paper or electronic form, must contain (i) the name and address of the employer; (ii) the number of hours worked by the employee in the pay period; (iii) the employee’s rate of pay for those hours; (iv) the gross wages earned by the employee during the pay period; and (v) the amount of, and reason for, any payroll deductions. See Va. Code § 40.1-29(C). Before this new law went into effect, Virginia employers only needed to provide gross wages and deductions on a paystub, and only had to provide such a paystub upon employee request.

Several Exemptions Under the Virginia Minimum Wage Law Repealed

As of July 1, 2019, certain classes of employees are no longer exempt from Virginia’s minimum wage law, including theater cashiers, ushers, and concession attendants. Va. Code § 40.1-28.9(A). Going forward, these employees must be paid the Virginia minimum wage (which is the same as the Federal Minimum Wage: $7.25 per hour) or the employer is subject to penalties including 8% annual interest on wages owed but not paid, plus any attorneys’ fees incurred in connection with the enforcement of the statute. Va. Code § 40.1-28.12.

Expected Future Developments

Due to the recent Democratic control of the Virginia General Assembly and Governor’s mansion, we expect the General Assembly may enact more employee-friendly laws in 2020. For instance, legislators have already introduced a bill that would increase the Virginia minimum wage to $15.00 per hour by 2025, with additional increases thereafter to account for inflation.. If other nationwide trends offer any insight, Virginia may also contemplate bills relating to paid sick leave, ban-the-box, additional protections for LGBTQ workers, and prohibiting the enforcement of non-competes against low-wage workers.

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