What an Employer Should Know About Employment Law in Virginia

Relationships between employers and employees are among the most heavily regulated in American law. Employees enjoy a wide range of rights that can result in significant legal liability for employers. As such, there are a few aspects of Virginia employment law that all employers should familiarize themselves with to limit their liability, and a Norfolk employment lawyer can help them do that.

Virginia Is an At-Will Employment State, but There Are Limits

Virginia, like almost all states, is an at-will employment state. What this means is that employers can terminate employees at any time and for any reason or no reason. Likewise, employees can quit at any time and for any reason or no reason. It also means that employers generally may change the terms of the employment relationship — such as hours, wages, benefits, time off, etc. — as they see fit.

Employment relationships in Virginia are presumed to be at-will unless they are modified by a contract. In such cases, and depending on the contract, the employment relationship may be modified only in accordance with the contract. For example, if an employment contract states that an employee may only be terminated for cause (i.e., misconduct) and the employer terminates him or her due to a reorganization, the employer may be in violation of the employment contract.

The liberties granted to employers in at-will employment relationships are broad, but they are not without limits. It is unlawful under Commonwealth and federal law to terminate at-will employees when:

The termination is based on discrimination against a protected characteristic of the employee (e.g., race, sex, ethnicity, religion, etc.)
The employee refuses to participate in illegal activity (e.g., committing perjury during an investigation)
The employee exercises a statutory right (e.g., reporting fraud to government authorities)

If you are facing allegations of wrongful termination, including retaliation, you should consider speaking to a Norfolk employment lawyer.

Non-Compete Agreements Are Unlawful for Low-Wage Workers

Non-compete agreements generally prohibit former employees from working for their former employers’ competitors for a specific length of time after the employment relationship ends. They are legal in Virginia to the extent that they are (1) no greater than necessary to protect a legitimate business interest, (2) not unduly harsh or oppressive in curtailing the employee’s ability to earn a livelihood, and (3) reasonable in light of sound public policy.

In 2020, the General Assembly prohibited the use of non-compete agreements for low-wage workers. Such workers are defined as:

Those who work without pay
Employees whose average weekly wage is less than the average weekly wage of the Commonwealth
Independent contractors who are compensated at an hourly rate that is less than the median hourly wage for the Commonwealth

Employers who violate this statutory provision are subject to a fine of $10,000 per violation.

Workers Are Presumed to Be Employees

Worker classification is a major issue in employment law in Virginia, and employers can be subject to severe penalties for misclassifying workers. Generally, worker misclassification occurs when an employer treats a worker as an independent contractor rather than an employee. Treating workers as independent contractors has a number of benefits for employers. For example, the employer does not have to withhold payroll taxes from the independent contractor’s wages, nor does the independent contractor need to be covered by the employer’s workers’ compensation insurance policy.

Regardless of what an employer calls a relationship with a worker (i.e., “employee” vs. “independent contractor”), courts examine the functional relationship between the parties to determine an employee’s status. Generally, the more control an employer exercises over a worker’s job functions, the more likely it is that the worker will be found to be an employee. In 2020, the General Assembly amended the Commonwealth’s worker misclassification law by creating a presumption that any individual who performs services for pay for another person will be presumed to be that person’s employee unless the person can show that the individual is an independent contractor. If a court finds that an individual was misclassified, it may award wages, salary, employment benefits, and attorneys’ fees and costs.

For more information about how to determine whether a worker is an employee or an independent contractor, please contact a Norfolk employment lawyer.

The Minimum Wage Increases Every Year

The federal minimum wage is $7.25 per hour, but states may set their own minimum wage laws so long as they comply with the federal minimum wage. In 2020, the General Assembly amended the Commonwealth’s minimum wage law to provide for annual increases. Beginning on January 1, 2023, the minimum wage in Virginia is $12.00 per hour — significantly higher than the federal minimum wage. In 2025, the minimum wage in the Commonwealth will increase to $13.50 per hour, and in 2026 it will increase to $15 per hour. Beginning in 2027, the minimum wage will then increase by a set percentage every year thereafter.

There Are Limits on Pre-Employment Screening

Pre-employment screening practices have come under increased scrutiny in recent years as the “ban the box” movement — which seeks to bar employers from inquiring about an applicant’s conviction or arrest record — gains steam. While “the box” is not yet banned in the private sector in Virginia, there are a few limits of which employers should be aware.

Criminal Convictions

Virginia employers generally may ask applicants and conduct criminal background checks. However, in 2020, Virginia’s pre-employment screening laws were amended to bar employers from requiring applicants to disclose arrests, criminal charges, or convictions relating to simple possession of marijuana.

Drug Testing

Virginia law gives employers fairly wide latitude to conduct pre-employment and workplace drug testing. One major exception to this rule is that employers are barred from disciplining, discharging, or discriminating against employees for the lawful use of cannabis oil pursuant to a valid certification issued by a medical provider.

Social Media

Social media is an effective tool for pre-employment screening, and Virginia law does not prohibit employers from viewing information about an applicant that is publicly available. However, employers may not require an applicant or a current employee to disclose their social media username and password to their employer, nor may an employer require an applicant or current employee to add the employer as a social media contact.

Contact a Norfolk Employment Lawyer if You Have Been Accused of Violating Virginia Employment Law

Violations of employment law in Virginia can result in severe fines and penalties. If you have been accused of violating employment laws in Virginia, you should speak to an attorney who can help you mount a defense. To get started, please contact a Norfolk employment lawyer at Pierce / McCoy by calling 757-304-6655 or using our online contact form.