Today—July 1, 2022—marks the effective date for a handful of new Virginia laws that public and private employers should note. Given that the General Assembly was divided this year, with the Republicans in charge of the House and the Democrats in charge of the Senate, it was unsurprising to see fewer employment law bills make it out of session compared with the prior sessions of 2021 and 2020. Still, some noteworthy changes have been made that warrant attention and action by all employers.
The General Assembly substantially amended the controversial Virginia Overtime Wage Act, Va. Code § 40.1-29.2 (VOWA), which originally passed last year in 2021. The 2022 amendments struck most of VOWA’s language and replaced it with a simple paragraph adopting the federal Fair Labor Standards Act (FLSA).
This is good news for employers who may largely revert to their pay practices that predated the passage of VOWA. But they must be careful—these amendments were not retroactive. This means that claims could potentially be brought for overtime violations occurring between July 1, 2021 and June 30, 2022 under the original VOWA—with all of its ambiguity.
In addition, the amended VOWA still permits employees to bring wage and hour claims governed by the FLSA in Virginia’s courts, following the fairly new process set forth in Va. Code § 40.1-29(J), colloquially coined the “Virginia Wage Theft Act,” established back in 2020. Employers should remember that under this new procedure, enhanced remedies are available to employees not otherwise found in the FLSA, namely prejudgment interest. It also remains an open question as to whether the FLSA’s defense of good faith to prevent the award of liquidated damages will conflict with Virginia’s newest wage and hour laws. Fortunately, the three-year statute of limitations that VOWA originally carried has been eliminated.
This approach removes from VOWA a myriad of confusing cross-references to the FLSA’s various exemptions to overtime, which caused so much concern among employers last year that the General Assembly passed a budget amendment last August 2021 to clarify that certain pay practices were untouched by VOWA. One specific industry, however, is addressed in the amended VOWA in a new section, Va. Code § 40.1-29.3, which removes the federal exemption from overtime for employees of derivative carriers in the rail and air industries.
Notably, the General Assembly also directed the Secretary of Labor to study VOWA and generate a report on further recommendations by November 1, 2022. This means that more revisions could be introduced in next year’s session, depending on the political dynamics of the General Assembly in 2023. Employer should keep an eye out for changes while auditing how this realignment back with the FLSA impacts their payroll overtime obligations.
As of today, employers are prohibited by statute from discharging or otherwise taking adverse personnel action against employees who miss work for unlawful detainer (i.e., eviction) proceedings. Court summons for such proceedings will contain a notice of tenants’ rights to such job-protected leave. “Adverse action” includes not only discharge, but requiring employees to use sick leave or vacation leave benefits for such time off. Employers who violate this provision can be charged with a Class 3 misdemeanor. However, employers are entitled to reasonable notice of such court appearance or summons, as noted by Va. Code § 18.2-465.1.
Employers should update their handbooks to acknowledge this job-protected leave, similar to policies they should already have in place for appearing in court for domestic violence cases or jury duty.
3. Seizure First Aid Posters (HB1178)
Beginning today, Virginia employers with 25 or more employees must now physically display this poster on seizure first aid in a prominent location in their workplace.
The poster is available on the Virginia Department of Labor & Industry’s website and contain guidelines consistent with those established by the Epilepsy Foundation of America. Employers do not need to offer training or render assistance to those experiencing a seizure in their workplace, but the law invokes the protections for “good Samaritans” who render emergency care in good faith without compensation. See Va. Code § 8.01-225. Employers should make room for this poster in a conspicuous location, easily accessible by their employees.
Further, local governments are now required to take into consideration or give preference to a job applicant who has a disability. People with disabilities are defined as individuals with a “physical or mental impairment that substantially limits one or more of [the person’s] major life activities or who has a record of such impairment.” See Va. Code § 51.5-40.1.
This statute permits localities to give weight to the applications of individuals with disabilities who are qualified for the available position with all the knowledge, skills, and eligibility required in the same way localities have been mandated to give preference to honorably discharged veterans since 2005.
Those tasked with interviews and hiring decisions should be trained on the best practices for complying with this new requirement.
The Sands Anderson Employment Team stands ready to assist you and your workplace as you navigate the ever-changing legal landscape in Virginia. Please contact us to find out how we can help you navigate VOWA and today’s most pressing employment issues including masking, vaccine mandates, and remote work policies.