On July 1, 2020, Virginia leapfrogs from the back of the pack to at least the front half of states in laws that govern the workplace and protect employees. For decades, Virginia was known primarily as an “employment at will” state, where employers had full rein to make their own rules, or not, to govern the workplace. Those relying on Federal employment laws faced a challenging, procedural minefield in the federal court system. But all that changes today. New Virginia laws provide state law causes of action for a number of workplace wrongs and new protections for Virginia’s employees. The six most important of these laws are discussed below.
(1) The Virginia Values Act establishes a state law cause of action, with no caps on damages, for wrongful discrimination on the bases of race, color, religion, national origin, sex, pregnancy, and veteran status (all of which are protected characteristics under federal law), but also sexual orientation, gender identity, and hairstyle. Discrimination claims under this law can be brought against employers with 15 or more employees. Discriminatory discharge claims can be brought against employers with 6 or more employees.
The Virginia Values Act also provides new protections for pregnant workers and new mothers. Employers must accommodate pregnancy and motherhood with longer breaks, lactation opportunities, temporary job transfers, adjusted seats and desks, and other potential accommodations.
(2) Wage Payment Act Amendments give employees the right to sue if their employer does not pay them on time. Previously employees could only file a complaint with the Department of Labor or sue for breach of contract. The Amendments permit an award not only of the wages due but of liquidated damages (an additional amount up to the level of wages due that covers related damages) and attorneys fees.
(3) Workers misclassified as independent contractors, who should be classified as employees (and therefore eligible for benefits such as health insurance and retirement plans) may now bring a cause of action. They can recover lost compensation (pay and benefits) and attorneys fees.
(4) The new Whistleblower Protection Act provides a cause of action if an employee is fired for cause of action for reporting any violation of federal, state, or local law. This law has potentially broad application to cover those fired for opposing discrimination, health code violations, safety violations, tax and financial violations, and other illegalities.
(5) Virginia law now prohibits non-compete agreements for employees making less than the statewide median salary (currently around $60,000 per year.) The law appears to permit non-solicitation agreements (which prohibit former employees from seeking business from customers of a former employer) but prohibits broader prohibitions against “competing” with a former employer.
It remains to be seen how earth-shattering these new laws will be. These changes are significant. But none of them are unique – many other states have had such rules for years, if not decades. Virginia is catching up to other states in protecting employees, and employment lawyers are ready to help bring these laws to life in the courts
John C. Cook and Broderick C. Dunn are partners in the Fairfax firm of Cook Craig & Francuzenko. Both have been recognized in Virginia Superlawyers Magazine and other publications for their leadership in the law.
