[co-author: Grace Weatherall, Summer Associate]
The 2018 election in Virginia ushered in Democratic control of both houses of the state legislature and a Democratic Governor; together, they have enacted a series of sweeping legislative actions, including, recently, a suite of changes to the Commonwealth’s employment laws. These changes include new protections against employee discrimination, partial prohibitions on certain non-compete clauses, a general protection for whistleblowers, wage transparency laws, a “ban the box” law for simple marijuana possession convictions, and expanded private rights of action. Except as noted below, these changes went into effect on July 1, 2020. For the most part, the new laws bring Virginia in line with existing practices in neighboring states and Washington, DC, and so should not be a cause for significant compliance concerns for multi-state and national employers. Nonetheless, Virginia employers should be aware of the recent changes and take steps to ensure compliance by updating their policies, practices, and agreements, as necessary, and are encouraged to consult with legal counsel.
Discrimination and Accommodation Protections
The “Virginia Values Act” amends the Virginia Human Rights Act (VHRA) to cover more employers, provide protection for more protected classes, and offer more remedies to successful claimants, among other things. Specific changes, include:
Whistleblower Protections
Virginia’s new “Fraud and Abuse Whistleblower Protection Act” establishes a range of new protections for whistleblowers and creates new avenues for bringing suit:
Partial Prohibition on Non-Compete Clauses
Virginia courts have long disfavored restrictions on competition, refusing to enforce them if they contain restrictions deemed unreasonable in geographic scope, duration, or the scope of restricted activities; Virginia has also declined to “blue pencil” overbroad non-compete provisions. Virginia now by statute greatly restricts employers’ ability to impose and enforce non-compete clauses against current and former employees and provides a private right of action for employees to enforce the law. The new law includes the following provisions:
Worker Classification
Virginia enacted a new law on misclassification of workers that now presumes that any individual performing services for remuneration has employee status, making it more difficult for Virginia employers to properly treat and/or classify individuals as independent contractors. Specifically:
Wage Payment Law Amendments
Governor Northam signed several amendments to Virginia’s Wage Payment Law, which include the following changes:
Pay Transparency Governor Northam also signed bills that support pay transparency. A new law prohibits retaliation by an employer against an employee for discussing or disclosing to another employee “any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation”—provided, however, that the employee did not gain access to the compensation information of those other employees or applicants as part of their essential job functions. A related amendment to the Wage Payment Act requires Virginia employers to provide employees with a paystub “each regular pay date,” which must contain “sufficient information to enable the employee to determine how the gross and net pay were calculated,” including, for employees paid on an hourly basis, the number of hours worked. Violations are subject to a civil penalty of $100 per violation.
Marijuana Convictions Virginia has joined the ranks of states that decriminalized under state law simple possession of marijuana. Although Virginia still prohibits possession of marijuana (other than pursuant to a valid prescription), the new law imposes only a $25 civil penalty. Records of these convictions are restricted. Employers “shall not, in any application, interview, or otherwise, require an applicant for employment … to disclose information concerning any arrest, criminal charge, or conviction” under Virginia’s simple marijuana possession statute. Employers should ensure that job application materials are updated to comply with this new prohibition, as the statute provides that a willful violation is a Class 1 misdemeanor. Marijuana possession remains unlawful under federal law, however, and the new Virginia statutory provisions do not address questions about convictions under federal law or the laws of any other jurisdiction.
Pandemic Occupational Safety Regulations In addition, as noted in Pillsbury’s client alert of July 23, 2020, the Virginia Department of Labor and Industry has adopted emergency temporary workplace safety regulations that mandate actions Virginia employers must take to protect workers from contracting COVID-19. The measures include specific rules about screening employees, notifying employees and others of known exposures, changing workplace practices, policies, and procedures, and other measures. These regulations went into effect the week of July 27, 2020, for a six-month period.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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