Employment law touches almost everyone’s life — at least for the vast majority of Americans who work for a living. With some studies estimating that the average American spends about one-third of his or her life at work, the contours of employment law can have significant repercussions for workers and their ability to thrive in their career of choice. Most workers don’t think about employment law all that often, but all workers should have at least some familiarity with the laws and regulations that govern their careers. Here, a Richmond employment lawyer explains some of the most important things workers need to know about Virginia’s employment laws.
They Are Quickly Changing
The political landscape in Virginia is shifting. Traditionally, Virginia was considered a typical Southern state, and its employment laws tended to reflect that political philosophy. However, as Virginia moves away from its political roots and becomes more of a “purple state,” its employment laws likewise have changed with it. In 2020, Governor Northam signed a flurry of changes into law that generally were seen as being pro-worker. Some of those changes included:
The federal minimum wage is $7.25, which was also the Virginia minimum wage before 2020. That year, Governor Northam signed a bill into law that would raise the Commonwealth minimum wage every year to $9.50 in 2021, $11.00 in 2022, $12.00 in 2023, $13.50 in 2025, and $15.00 in 2026. From 2027 onward, the minimum wage will increase by a certain percentage each year.
Wage theft occurs when an employer fails to pay an employee what he or she is owed by law. This can include paying workers less than minimum wage, refusing to pay overtime, prohibiting legally mandated rest and meal breaks, and failing to pay a worker’s last paycheck upon termination. In 2020, Virginia’s wage theft law was updated to allow a private right of action against employers for the recovery of wages withheld, plus 8% interest. If the wage theft is found to be intentional, the employee may recover treble damages. The law also provides for criminal penalties in cases of willful wage theft.
Non-compete agreements prohibit former employees from working for a former employer’s competitors for a specific length of time. While they were once most common at the executive level and in highly skilled professions, they have trickled down into lower-wage professions in recent years. In 2020, Virginia banned the use of non-compete agreements for low-wage workers, which the law defines as employees whose average weekly earnings are less than the average weekly wage in the Commonwealth.
Ban the Box
The “ban the box” movement seeks to prohibit employers from requiring applicants to disclose their arrest or conviction records early in the employment screening process. In 2020, Virginia’s ban-the-box law went into effect prohibiting state agencies and localities from inquiring about most applicants’ criminal records. While private employers may still inquire about applicants’ criminal records, there is one major exception. No employer in Virginia may require an applicant to disclose an arrest or conviction for simple possession of marijuana.
Worker misclassification occurs when an employer incorrectly classifies a worker as an independent contractor rather than an employee. It can also occur where an employer incorrectly classifies a worker as “exempt” from the Fair Labor Standards Act when the worker should be classified as “non-exempt.” In 2020, Governor Northam signed a bill into law that creates a presumption that any worker who provides services for pay is an employee rather than an independent contractor. The burden then shifts to the employer to prove that the worker is not an employee. The law also creates a private right of action for civil damages against employers who had knowledge of the worker’s misclassification.
Virginia’s Anti-Discrimination Laws Are Broad
American workers are covered by a variety of federal and state anti-discrimination laws and policies. At the federal level, Title VII of the Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex or national origin. However, states may provide more comprehensive protection through their own laws. The Virginia Human Rights Act is broader than federal law, protecting employees from discrimination based on:
- National origin
- Childbirth or related medical conditions
- Marital status
- Sexual orientation
- Gender identity
- Military status
Virginia’s anti-discrimination laws also apply to characteristics typically associated with a particular gender or race, such as a person’s appearance or hairstyle. But even with broadened protections, employment discrimination cases are often difficult to pursue. If you believe you have been discriminated against in the workplace based on any protected characteristic, please consider contacting a Richmond employment lawyer.
Whistleblowers Enjoy Strong Protection From Retaliation
Whistleblowing occurs when an employee reports fraud, waste, or violations of law committed by his or her employer to the appropriate governmental body. While whistleblowing usually is a noble pursuit, whistleblowers frequently are the targets of discrimination, harassment, and retaliation from their employers. To prohibit such retaliation, and thereby encourage whistleblowing, Virginia employment law provides for comprehensive protection from retaliation for whistleblowers.
No employer in Virginia may take retaliatory action against an employee for engaging in the following behaviors:
- Reporting violations of state or federal law
- Participating in an investigation, hearing, or inquiry
- Refusing to participate in criminal activity
- Refusing an employer’s order to perform an action that would violate state or federal law
- Providing information to or testifying before a government body conducting an investigation, hearing, or inquiry
Virginia whistleblower protection laws also allow wrongfully terminated individuals to pursue a private right of action against their former employers within one year of the employer’s prohibited retaliatory action.
Speak With a Richmond Employment Lawyer for Even More Helpful Information
The scope of employment law is vast, and this post merely scratches the surface of its most important points for Virginia workers. For more specific information about Virginia employment laws, please contact a Richmond employment lawyer at Pierce / Jewett by calling 757-304-6655 or using our online contact form.