On November 16, 2020, Governor Ralph Northam issued a press release stating that he would introduce and support legislation legalizing marijuana in the Commonwealth of Virginia. Northam said:   It’s time to legalize marijuana in Virginia. Our Commonwealth has an opportunity to be the first state in the South to take this step, and we will lead with a focus on equity, public health, and public safety. I look forward to working with the General Assembly to get this right.   Northam’s push for legalization comes on the heels of new marijuana laws that went into effect on July 1, 2020. In addition to decriminalizing simple possession of marijuana in the Commonwealth, the new laws prohibit employers and educational institutions from requiring an applicant to disclose information concerning any arrest, criminal charge, or conviction for simple marijuana possession. While Virginia’s new “Ban the Box” law does not have a private right of action, employers can be subject to a Class 1 misdemeanor for each violation.   The potential legalization of marijuana in Virginia further complicates the unsettled employment law landscape. Employers are already reviewing and revising their job application and hiring practices to ensure that they are not asking applicants to disclose arrests, criminal

Many people were left reeling by the recent revelation that famed author, lawyer, and legal analyst, Jeffrey Toobin was suspended by The New Yorker for masturbating in front of co-workers on a work related Zoom call. Toobin claims that he “thought no one on the Zoom call could see [him]” and “thought [he] had muted the Zoom video.” Twitterverse has given the Toobin incident an unfortunate and fitting label: the Zoom D*ck Incident.   Accidental or not, incidents like Toobin’s are becoming more common in the era of pandemic induced, virtual work. As workers have moved to Zoom, Microsoft Teams and Google Meet, so too has sexual harassment. One employee recently heard her boss engage in a sexually explicit conversation with his partner during a work Zoom meeting. He inadvertently left his microphone on. Other employees have reported their colleagues showing up for video calls nude from the waist down. Still others report that their co-workers are more likely to comment on their physical appearance virtually than in person. Others report being bullied and harassed in the Zoom chat feature during meetings.   What does this mean for employers? Just because your employees are working from home does not mean that your company’s equal employment opportunity policies

The Wage and Hour Division of the Department of Labor recently proposed new rules making it easier for employers to classify workers as independent contractors.   It is first important to know, new federal independent contractor rules will not preempt the new, landmark employment related Virginia Statute that went into effect on July 1, 2020, Va. Code § 40.1-28.7:7. Virginia’s new worker misclassification law does two important things:   1. It establishes the presumption that a worker is an employee rather than an independent contractor and puts the burden on the business owner to prove otherwise; and   2. It creates a private right of action for the misclassified worker to sue their employer in state court.   Despite this, a change in the DOL rules is significant because independent contractors, unlike employees, are not covered by federal minimum wage and overtime law. DOL’s proposed employer-friendly interpretation of the Fair Labor Standards Act is a direct reversal from the way that the statute was applied during the Obama administration and is the current administration’s response to blue-state efforts to expand the scope of employee status.   Eugene Scalia, Secretary of Labor and son of the late Supreme Court Justice, wrote in a recent Op-Ed that

These are unprecedented times for both employers and employees. To provide some clarity, the Department of Labor’s Wage and Hour Division recently provided guidance on common workplace issues that employers and employees face when responding to COVID-19 and its effects on wages and hours worked under the Fair Labor Standards Act (“FLSA”) and job protected leave under the Family Medical Leave Act (“FMLA”).   Some highlights include:   The Families First Coronavirus Response Act (“FFCRA”)’s paid leave provisions apply to leave taken between April 1, 2020 and December 31, 2020. Small Businesses (<50 employees) qualify for the small business exemption to the FFCRA if providing child-care related paid sick leave and expanded family and medical leave would jeopardize the viability of the business. DOL will flesh out the criteria for the exemption in forthcoming regulations. Under the Emergency Family and Medical Leave Expansion Act, employers are required to pay an employee for hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. Under the Emergency Paid Sick Leave Act, employers are not required to include overtime hours when calculating pay. Employees are to be given paid sick leave only up to 80 hours over a two

Many African American people have been rejected from jobs, punished at school and called out in other public places because of the texture and style of their hair. Several states and localities including California, New York and Montgomery County, Maryland, have passed or proposed laws banning policies that penalize diverse people from wearing natural curls, dreadlocks, twists, braids and other hairstyles which embrace their cultural identity.   Ethnic hairstyles may soon be protected in Virginia under a proposed amendment to the Virginia Human Rights Act (VHRA).   SB50 in the Virginia Senate and HB 1514 in the House of Delegates both propose VHRA amendments which state the following:   C. The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.   If these bills become law, many employers will have to reexamine their grooming policies to ensure that they conform with the new definition. For example, grooming policies which state that an employee’s hair should