Virginia’s Basic Meeting and governor labored collectively this 12 months to enact a broad vary of latest employment legal guidelines that impression just about each facet of the employment relationship. These legal guidelines create new substantive and procedural protections for workers and impose new liabilities and burdens on employers, and so they take impact July 1, 2020.
Expanded Protections, Protection, and Treatments Below the Virginia Human Rights Act
Senate Invoice 868, referred to as the Virginia Values Act (VVA), amends the Virginia Human Rights Act (VHRA) so as to add new worker protections and improve employer protection, together with:
Including sexual orientation and gender id to the VHRA’s listing of protected classifications. Earlier than the VVA’s enactment, the VHRA’s protected classifications comprised race, coloration, faith, nationwide origin, intercourse, being pregnant, childbirth and associated medical situations, age, marital standing, and veteran standing.1
Broadening the scope of lined employers. Earlier than the VVA’s enactment, the VHRA lined smaller employers that weren’t lined underneath federal anti-discrimination legal guidelines. Particularly, for all types of prohibited discrimination aside from age, the VHRA lined employers that employed between six and 14 workers, and, for age discrimination, lined employers with between six and 19 workers. The VVA expands the VHRA’s protection to all employers with 15 or extra workers (apart from age discrimination). As well as, for functions of illegal discharge claims based mostly on illegal discrimination (aside from age), the VHRA now covers all employers with greater than 5 workers.2
Increasing Virginia’s enforcement powers. The VVA grants expanded powers to the Virginia Division of Human Rights (DHR) and grants the Commonwealth’s lawyer common authority to provoke a civil motion on behalf of an aggrieved particular person looking for injunctive reduction, compensatory and punitive damages, affordable attorneys’ charges and prices, in addition to civil penalties.
Increasing a personal proper of motion. The VVA’s most vital change is probably that people could now carry a civil motion for any kind of VHRA declare in Virginia state court docket after exhausting their administrative cures. (Beforehand, the VHRA solely offered a personal proper of motion for discriminatory discharge claims.) A person who prevails in a civil motion is entitled to reduction beforehand unavailable, together with compensatory and punitive damages, affordable attorneys’ charges and prices. Not like its federal legislation counterparts, the VHRA imposes no caps on financial damages.
Expanded VHRA Race Discrimination Protections
Home Invoice 1514 amends the VHRA to expressly state that race discrimination contains discrimination on the premise of traits traditionally related to race, particularly together with “hair texture, hair kind, and protecting hairstyles comparable to braids, locks and twists.”
Expanded VHRA Protections for Being pregnant, Childbirth, and Associated Medical Circumstances
Home Invoice 827/Senate Invoice 712 amends the VHRA to: (1) prohibit employers with 5 or extra workers from discriminating in opposition to an worker or applicant on the premise of her being pregnant, childbirth, or associated medical situations, together with lactation; (2) require lined employers to make affordable lodging for any such recognized limitations associated to these situations except the employer can exhibit that the lodging impose undue hardship on the employer; (3) prohibit lined employers from taking opposed motion in opposition to an worker who requests or makes use of, or an applicant who requires, an affordable lodging associated to these situations; and (4) require lined employers to offer data regarding these protections in a conspicuous office location, in any worker handbook, to new workers upon graduation of employment, and to any worker inside 10 days of her offering discover that she is pregnant.
The procedural rights afforded underneath this part are considerably broader than these afforded underneath the VHRA’s different anti-discrimination protections. Though, as with all VHRA discrimination claims, a person with a declare underneath this part could file an administrative cost with the DHR, she has alternative, not afforded these with different VHRA claims, to as a substitute file a civil motion with out exhausting her administrative cures. Moreover, not like people with different VHRA claims, who typically should file a DHR cost inside 180 days of the violation, a person with a declare underneath this part has two years from the violation date to file her DHR cost or civil motion.
Protections Towards Non-Competes for Low-Wage Staff
Home Invoice 330/Senate Invoice 480 prohibits employers from getting into into or implementing non-compete covenants with low-wage workers. The legislation applies to covenants to not compete which can be entered into on or after July 1. Each employer is required to submit a replica or authorised abstract of the legislation in the identical location the place different worker notices required by state or federal legislation are posted.
The legislation defines a “low-wage worker” as any worker whose common weekly earnings are lower than the typical weekly wage of the Commonwealth as decided by the Virginia Staff’ Compensation Fee (VWC).3
The legislation doesn’t restrict employers’ use of confidential data or nondisclosure agreements meant to stop the misappropriation of commerce secrets and techniques and proprietary or confidential data.
Virginia’s Division of Labor and Business (DOLI) is allowed to manage and implement the legislation, together with implementing rules, initiating investigations, figuring out violations, issuing warnings, imposing civil penalties, and prosecuting violations in civil court docket.
Along with the DOLI enforcement provisions, the legislation permits an worker to carry a civil motion in opposition to an employer that makes an attempt to implement a covenant to not compete. The court docket has the ability to order all acceptable reduction, together with enjoining the employer’s conduct, ordering cost of liquidated damages, and awarding damages (together with misplaced compensation). If the employer is discovered liable, the court docket is required to award the worker affordable attorneys’ charges, skilled witness charges, and prices. Employers are prohibited from retaliating in opposition to an worker who brings a civil motion underneath this legislation.
Protections Towards Employee Misclassification
There are a selection of latest legal guidelines designed to stop and treatment employee misclassification.
Non-public Proper of Motion. Home Invoice 984/Senate Invoice 894 permits a person who has not been correctly categorised as an worker to carry a civil motion in opposition to an employer that had data of the misclassification. The legislation requires the court docket to presume that a person who performs providers for an individual for remuneration is an worker of the particular person, except it’s established that the person is an impartial contractor underneath IRS tips. If the court docket finds that the employer didn’t correctly classify the person as an worker, the court docket could award the person damages, together with misplaced compensation and employment advantages, affordable attorneys’ charges and prices.
Non-Retaliation Protections. Home Invoice 1199/Senate Invoice 662 prohibits employers from retaliating in opposition to an worker or impartial contractor as a result of the worker or impartial contractor (1) reported or plans to report that an employer has didn’t correctly classify a person as an worker and didn’t pay required advantages or different contributions, or (2) is requested or subpoenaed by an acceptable governmental authority to take part in an investigation, listening to, or inquiry by the governmental authority or in a court docket motion. These protections solely apply to an worker or impartial contractor who disclosed details about suspected employee misclassification in good religion and upon an affordable perception that the data was correct.
An worker discriminated or retaliated in opposition to in violation of this statute could file a criticism with the DOLI, which is allowed to institute proceedings in opposition to the employer for acceptable cures, together with reinstatement and restoration of misplaced wages. The DOLI additionally will assess an employer that violates this statute a civil penalty to not exceed the quantity of the worker’s misplaced wages.
Expanded Enforcement Powers. Lastly, Home Invoice 1407/Senate Invoice 744, which takes impact Jan. 1, 2021, prohibits any particular person from requiring or requesting that a person enter into an settlement or signal a doc that ends in the person’s misclassification as an impartial contractor or in any other case doesn’t precisely replicate the connection with the employer. The statute makes it illegal for an employer (or some other occasion) to retaliate in opposition to any one that workout routines rights underneath the legislation (however doesn’t present a personal reason for motion).
Virginia’s Division of Taxation is allowed to manage and implement the statute, together with making classification determinations based mostly on IRS tips, and imposing civil penalties. An employer, or an officer or agent of the employer, that improperly classifies a person as an impartial contractor, and fails to pay taxes, advantages, or different contributions required to be paid an worker, is topic to civil financial penalties that escalate with subsequent violations. If the employer is a authorities contractor, the Division will notify the suitable authorities company of a primary violation; within the occasion of subsequent violations, the federal government contractor will likely be debarred for a time period.
Expanded Wage Cost Protections
The Virginia Wage Cost Act (VWPA), Virginia Code § 40.1-29, typically requires employers to pay salaried workers not less than as soon as a month and hourly workers not less than as soon as each two weeks or twice a month, and, upon termination of employment for any purpose, to pay all remaining wages on the following recurrently scheduled payday. In its present kind, the VWPA authorizes the DOLI to manage and implement the statute, together with investigating potential violations and assessing civil and legal penalties.
Non-public Proper of Motion. Home Invoice 123 amends the VWPA to allow an worker to file a civil motion for VWPA violations. Particularly, if an employer fails to pay wages to an worker in accordance with the statute, the worker could carry a civil motion in opposition to the employer to get better cost of the wages plus prejudgment curiosity. If the court docket finds that the employer knowingly didn’t pay wages in accordance with the statute, the worker is entitled to get better the quantity of the wages due (plus prejudgment curiosity) and affordable attorneys’ charges and different prices. Moreover, if the court docket finds that the employer willfully and with intent to defraud failed or refused to pay wages when due, the worker is also entitled to get better an quantity equal to a few occasions the quantity of wages due.
Non-Retaliation Protections. Home Invoice 337/Senate Invoice 48 amends the VWPA to ban employers from retaliating in opposition to an worker as a result of the worker (1) filed any criticism or instituted any continuing underneath the VWPA or (2) testified or is about to testify in any such continuing. An worker who’s retaliated in opposition to underneath this part could file a criticism with the DOLI, and the DOLI is allowed to pursue authorized motion on behalf of the worker for acceptable cures, together with reinstatement, misplaced wages, and liquidated damages equal to the misplaced wages. There isn’t a personal proper of motion underneath this part.
Building Contractor Legal responsibility. Senate Invoice 838 amends the VWPA to carry a common contractor collectively and severally chargeable for its subcontractors’ failure to pay their workers in accordance with the VWPA (topic to a proper of indemnification if the violation was not as a result of common contractor’s personal failure to pay the subcontractor).
Expanded Enforcement Powers. Lastly, Home Invoice 336/Senate Invoice 49 offers the DOLI larger investigative and enforcement powers underneath the VWPA and permits the company to institute proceedings on behalf of the aggrieved worker(s).
Expanded Protections for Sharing Wage Info
Home Invoice 622 prohibits employers from discharging or taking different retaliatory motion in opposition to an worker as a result of the worker (1) inquired about or mentioned with, or disclosed to, one other worker any details about both the worker’s personal compensation or some other worker’s compensation, or (2) filed a criticism with the DOLI alleging a violation of the statute.
Expanded Whistleblower Protections
As we beforehand reported (GT Alert, New Virginia Whistleblower Legislation Alters Employment Litigation Panorama, April 28, 2020), Virginia’s Fraud and Abuse Whistle Blower Safety Act prohibits personal employers from discharging, disciplining, threatening, discriminating in opposition to, or penalizing an worker, or taking different retaliatory motion concerning an worker’s compensation, phrases, situations, location, or privileges of employment, as a result of the worker (1) in good religion experiences a violation of any federal or state legislation or regulation to a supervisor or to any governmental physique or law-enforcement official, (2) is requested by a governmental physique or law-enforcement official to take part in an investigation, listening to, or inquiry, (3) refuses to have interaction in a legal act that might topic the worker to legal legal responsibility, (4) refuses an employer’s order to carry out an motion that violates any federal or state legislation or regulation and the worker informs the employer that the order is being refused for that purpose, or (5) supplies data to or testifies earlier than any governmental physique or law-enforcement official conducting an investigation, listening to, or inquiry into any alleged violation by the employer of federal or state legislation or regulation.
An worker could carry a civil motion underneath the statute, inside one 12 months of the alleged retaliatory motion. As cures, the court docket could situation an injunction to restrain continued violations, reinstate the worker, and award compensatory damages, along with curiosity, and affordable attorneys’ charges and prices.
Implications for Virginia Employers
The Basic Meeting’s vital enlargement of Virginia’s employment legal guidelines requires employers to take speedy motion to make sure compliance with new authorized necessities that have an effect on just about each facet of their workforce operations – from recruitment to termination, and past.
Considerably, these new legal guidelines will open the doorways to the Virginia courthouses and allow litigation of many of those claims straight in state court docket. Broader enforcement powers may end in larger publicity for the unwary employer.
With respect to discrimination, retaliation, and affordable lodging, employee classification (each exempt workers and impartial contractors), wage cost, and restrictive covenants, employers should overview, and make any mandatory modifications to, their present employment insurance policies and practices (together with posting and spot necessities), prepare their human assets and administration personnel, and educate their workforce. As well as, on condition that worker lawsuits in Virginia’s state court docket system could improve, employers could want to take into account steps to keep away from or decrease that threat, together with, for instance, utilizing discussion board choice or arbitration agreements to the extent possible.
1 Though incapacity is included within the VHRA’s anti-discrimination coverage declaration, the Commonwealth’s incapacity protections are codified in an altogether totally different statute – the Virginians with Disabilities Act (VDA).
2 For age discrimination, together with age-based discharge claims, the VHRA continues to cowl employers with between six and 19 workers.
3 “Low-wage worker” expressly contains interns, college students, apprentices, or trainees who usually are not paid or are paid beneath the Commonwealth’s common weekly wage. Considerably, “low-wage worker” additionally contains impartial contractors who’re compensated at an hourly fee that’s lower than the median hourly wage for the Commonwealth, as reported by the U.S. Bureau of Labor Statistics. The legislation excludes workers whose earnings are derived, in entire or in predominant half, from gross sales commissions, incentives, or bonuses.
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