New employee-friendly Virginia laws that went into effect on July 1, 2020 broadly expand Virginia employee rights. These new laws protect workers in the Commonwealth of Virginia from a broad range of discrimination, retaliation, and other employer misconduct.
Before the enactment of these new employment laws, employers recognized Virginia as one of the least-friendly states when it comes to the rights of employees in the workplace.
Now the tables have turned, and Virginia employees can seek legal remedies if their employers retaliate against them for reporting illegal conduct in the workplace, misclassify them as independent contractors rather than employees, fail to pay them overtime or the minimum wage, or discriminate against them because of who they are.
I cannot overstate the importance of these new laws to Virginia employees. By enacting these new laws, the Commonwealth of Virginia has truly moved to the forefront of the nation in protecting the rights of employees, including the rights of some of the most historically marginalized groups of people in this country.
The Virginia Values Act Expands Virginia Employee Rights
The new Virginia Values Act significantly expands the protections of the existing Virginia Human Rights Act (VHRA) by prohibiting discrimination in employment on the basis of sexual orientation and gender identity. These protections were not available under Virginia law before July 1, 2020. This is a huge step forward for Virginia.
The Virginia Human Rights Act continues to prohibit employers from discriminating on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran.
The new Virginia Values Act also greatly expands the ability of Virginia employees to take their employers to court for violations of the VHRA.
Under the old law, you could sue your employer only if it employed between five and fifteen people, and only if they fired you. The old law drastically limited the damages you could recover.
Now, Virginia employees can take employers of almost all sizes to court in Virginia state courts to seek relief from discrimination in the workplace. And you can take your employer to court even if they discriminated against you in a manner short of termination, such as by demoting you or cutting your pay.
The monetary damages available to Virginia employees for discrimination in violation of the Virginia Human Rights Act are significantly increased, and are in general far greater than what an employee could recover under Title VII, the federal law that also prohibits discrimination in the workplace.
New Whistleblower Protection Law Expands Virginia Employees’ Rights to Report Employer’s Violations
Virginia’s new Whistleblower Protection Law prohibits employers from punishing an employee who reports to a supervisor or government body her good faith belief that the employer is violating some state or federal law or regulation.
For example, the law now prohibits Virginia employers from punishing employees who report to their supervisor or to the Virginia Department of Labor and Industry the employer’s refusal to follow the mandatory workplace safety standards Virginia recently enacted to address the risks of coronavirus/COVID-19 in the workplace.
Likewise, the law protects employees from retaliation if the government requests their assistance in an investigation of the employer’s misconduct, or if they refuse their employer’s demand that they engage in illegal activity.
Employees cannot use the protection provided by this new law to break the law themselves by disclosing their employer’s trade secrets to the public. The law does not protect employees who make complaints about their employer’s supposedly illegal conduct that they know to be false or don’t bother to even confirm as true.
But Virginia’s new whistleblower protection statute protects good faith whistleblowers from threats of retaliation and actual retaliation, including demotions, pay cuts, and termination.
An employee whose employer retaliated against her for blowing the whistle on the employer’s illegal conduct can seek relief from the circuit courts in the Commonwealth of Virginia, and can obtain reinstatement, back pay, and the reasonable attorneys’ fees and costs associated with bringing a lawsuit to defend these rights.
New Minimum Wage and Overtime Laws Further Expand Virginia Employee Rights
Virginia’s new Wage Payment Act provides significant protections for Virginia employees against unlawful wage theft, whether through an employer’s refusal to pay overtime or a refusal to pay the minimum wage.
Virginia employees can now take their employer into court to recover damages for wage theft, whether by themselves as individuals, or in joint or collective actions by a group of co-workers.
If a jury finds that a Virginia employer violated the Virginia Wage Payment Act, the employer must pay the affected employees unpaid wages, liquidated damages in an amount equal to the unpaid wages, and the reasonable attorneys’ fees and costs associated with bringing a lawsuit to defend these rights.
If a jury finds that the employer knowingly violated the law, the court may order the employer to pay treble damages—in other words, three times the amount of the actual unpaid wages.
Before Virginia passed this new law, Virginia employees could not take their employer to court, even if the employer refused to pay the wages it owed to its employees. This new law gives power back to employees, and will go a long way toward ensuring that Virginia employers no longer steal wages from their hard-working employees.
Virginia’s Wage Payment Act does prohibit employers from retaliating against any employees who complain about their employer’s illegal wage theft, but the Act does not itself allow employees to bring retaliation claims in court against their employers. However, an employee who faces retaliation for reporting her employer’s wage theft will likely be able to bring a retaliation claim against their employer under the Virginia Whistleblower Act.
On May 1, 2021, Virginia will Increase its minimum wage from its current federally mandated level of $7.25 per hour to $9.50 per hour. It will increase to $11.00 per hour on January 1, 2022, and to $12.00 per hour on January 1, 2023.
New Protections for Virginia Workers Who Are Misclassified as Independent Contractors
Worker misclassification occurs when an employer improperly treats its workers as independent contractors, rather than as employees. Employers misclassify workers because employees enjoy many protections that independent contractors do not.
Most workplace laws that protect employees do not protect independent contractors. States do not require employers to pay unemployment insurance, workers’ compensation insurance, or many federal and state payroll taxes on independent contractors.
Some employers illegally misclassify their workers as a tactic to save money by not contributing to state unemployment insurance and worker compensation programs, not paying minimum wage or overtime, and not paying federal and state taxes.
But worker misclassification is based on a lie. These misclassified workers do not own and run their own businesses, as true independent contractors do.
Worker misclassification hurts Virginia workers in a variety of ways. Fired workers who are misclassified as independent contractors may not qualify for unemployment insurance compensation. Misclassified employees who are injured on the job may not qualify for workers’ compensation insurance. And misclassified employees who thought their federal and state income taxes were being withheld on their paychecks may find that they are stuck with a huge tax bill when it comes time to file their income taxes. Worker misclassification also hurts all other Virginia employers who follow the rules and properly treat their workers as employees.
Virginia’s new law regarding worker misclassification is a huge step forward for Virginia employees. Under the new law, all Virginia workers who are paid money wages are presumed to be employees, not independent contractors. To overcome the presumption, your employer must show that you are a contractor under the IRS guidelines used to determine independent contractor status.
You can file suit against your employer in Virginia state court for worker misclassification, and if the court determines that you were misclassified as an independent contractor, you may recover damages in the amount of any wages, salary, employment benefits, or other compensation you lost, as well as reasonable attorneys’ fees and costs associated with bringing a lawsuit to defend these rights.
Low-Wage Employees in Virginia Now Protected Against Non-Compete Agreements
Employers often use “non-compete” agreements to prohibit their former employees from working for the employer’s competitors in the future. If you have signed a non-compete with your current employer, that agreement may bar you from working with another Virginia company that provides the same goods or services as your current employer—even if your current employer later fires you!
Virginia’s new law now prohibits employers of low-wage workers from requiring their employees to sign non-compete agreements. Low-wage employees include “interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience.”
Employers may continue to require Virginia low wage employees not to disclose trade secrets or confidential customer information, so this new law does not prohibit all post-employment restrictions on Virginia workers.
Employers must post a copy of the law or a summary of the law that is pre-approved by the Commonwealth. Those who fail to do so will be subject to a written warning for the first violation, a penalty of up to $250 for the second violation, and a penalty of up to $1,000 for every subsequent violation.
Low-wage employees may also sue their former employer in Virginia state court if the former employer attempts to enforce a non-compete in violation of this law. The court can void the restrictive covenant, order payment of liquidated damages and lost compensation, as well as reasonable attorneys fees and costs.