Effective October 29, 2020, Virginia employers must update their handbooks to reflect new state requirements regarding pregnancy discrimination, according to a recent law. The law adds posting requirements and is one of several state obligations recently introduced in Virginia. This client alert explains the new requirement and flags additional policy changes that employers need to take to avoid future liabilities.

This year, Virginia joined a number of states that include clear prohibitions on discrimination based on pregnancy, childbirth, and related medical conditions. Under the new law, employers must post in a conspicuous location, and include in any employee handbook, information concerning the prohibition against such unlawful discrimination as well as information about employees’ rights to related reasonable accommodations. Importantly, this information must also be provided to new employees and within 10 days of an employee’s notice to her employer that she is pregnant.

This upcoming deadline is a good reminder of the shifting legal landscape in Virginia. Virginia, a jurisdiction once known for its relatively lenient employment regulations, is trending toward increased implementation of employee legislation as exemplified by a flurry of legislation signed into law this year. Virginia companies now have important homework to complete, which includes updating employee agreements and other policies and procedures. Below is a summary of some of the most significant changes that companies must comply with to avoid costly penalties.

• Expanded Anti-Discrimination Law: In addition to the broader pregnancy protections described above, state law now makes it unlawful to discriminate against employees on the following bases: sexual orientation, gender identity, hairstyles, and hair textures. The new laws also expand the definition of covered employers to include companies with more than five Virginia employees.
• Non-Compete Agreements: Virginia now bans non-compete agreements for low-wage employees and independent contractors. Low-wage earners are defined as individuals who earn less than the average weekly wage in Virginia; currently that wage is $1,137 per week. The law provides individuals with a private right of action to seek liquidated damages, lost compensation, reasonable costs, and attorneys’ fees. Employers who seek to enforce such an agreement can also be found liable by the Virginia Department of Labor and Industry for a penalty of $10,000 per violation. Companies must post a copy of the new law in the same location where other employee notices required by state or federal law are posted.
• Asking Applicants about Marijuana Possession: Employers may no longer require job applicants to disclose information related to arrest, criminal charges, or convictions for possession of marijuana.
• Whistleblower Retaliation: Employers cannot retaliate against whistleblower employees who report suspected violations of law, refuse to engage in criminal activity, or assist in criminal investigations.
• Pay Transparency: Employers may not take adverse action against employees in retaliation for asking about or discussing compensation information with other employees.
• Misclassification of Independent Contractors: Virginia now prohibits employers from retaliating against employees and independent contractors for reporting the misclassification of a worker as an independent contractor. The state also imposes additional penalties for each misclassification offense.

While companies operating in other states, or on federal contracts, are already subject to many similar prohibitions, Virginia law imposes additional obligations and potential penalties. Companies with Virginia employees should ensure that managers are aware of the new laws and carefully review their personnel policies to ensure compliance.