In its 2020 Session, the Virginia General Assembly pushed forward legislation that makes sweeping changes to the state’s employment laws. On July 1, 2020, several Virginia laws went into effect that govern workplace discrimination, pregnancy accommodations, criminal history inquiries, non-compete agreements, whistleblower protections, and pay transparency. It is important that employers become familiarized with these laws as they significantly expand employee rights.
Discrimination. Virginia Human Rights Act (VHRA) amended by the recently passed Virginia Values Act (VVA), expanded protected classes to include sexual orientation, gender identity, and veteran status. Race discrimination now also includes traits historically associated with race, including hair texture, hair type, and hairstyles such as braids, locks, and twists. VHRA also now more closely resembles Title VII of the Civil Rights Act under federal law in that it provides employees a private right of action for all forms of discrimination and retaliation as opposed to before where the private right of action was limited to unlawful discharge. Employers with 6 or more employees are now covered under VHRA.
Pregnancy Accommodation. The VHRA also now requires employers with 5 or more employees to provide reasonable accommodations for the known limitations of pregnancy, childbirth, or “related medical conditions”, which includes lactation. Once an employee has requested an accommodation, employers must engage in an interactive process with the employee to determine if the request is reasonable, and if not, discuss alternative accommodations. Employers also have notice requirements. Employers must post in a conspicuous place and include in any employee handbook information on employee rights to reasonable accommodations under this new law. Such information must also be provided to new employees upon hire and to any employee within 10 days of the employer receiving notice of the employee’s pregnancy. Employers have until October 29, 2020, to post the notice in the workplace and to update any handbook they may have. A model notice has not yet been published by the Virginia Department of Labor & Industry.
Marijuana Ban-the-Box. Under §19.2-389.3(B), employers are prohibited from requiring an applicant to disclose information related to an arrest, criminal charge, or conviction for simple possession of marijuana.
Non-Compete Agreements. Under §40.1-28.7:8, employers may not enter into, enforce, or threaten to enforce an agreement or covenant not to compete with any “low-wage employee” who earns less than the average weekly wage in Virginia (as of July 1 this is $1,137 per week/$59,124 per year) as determined by the Virginia Workers’ Compensation Commission. This amount will be adjusted annually. “Low-wage employee” shall not include any employee whose earnings are derived, in whole or in predominant part, from sales commissions, incentives, or bonuses paid to the employee by the employer. These new restrictions apply only to noncompete agreements that are entered into on or after July 1, 2020. Employers must post a copy of the new law in a conspicuous place at the worksite where other state and federal notices are posted. The new law can be found here where you may print a copy of it to post.
Whistleblower. Statutory protections are now afforded to private-sector whistleblowers under §40.1-27.3. With respect to federal and state laws, employers cannot retaliate against employees who report suspected violations, refuse to engage in criminal activity, or assist in criminal investigations. An employee who alleges a violation of this section may bring a civil action in a court of competent jurisdiction within one year of the employer’s prohibited retaliatory action.
Pay Transparency. Under §40.1-28.7:9, employers may not discharge or retaliate against employees who inquire about, discuss, or disclose wages or other compensation information to other employees. This new law does not apply to employees who have access to the compensation information of other employees or applicants for employment as part of their essential job functions who disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information. The Commissioner of Labor and Industry enforces this law through a civil penalty of $1,000 per violation.
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