On Wednesday, February 16, 2022, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) convened and voted to recommend revoking the Commonwealth’s COVID-19 permanent workplace safety standard. This action comes after newly-elected Governor Glenn Youngkin issued Executive Order 6 directing the Board to convene an emergency meeting to consider
Federal contractor vaccine mandate temporarily halted nationwide
On December 7, 2021, a federal court in Georgia issued a nationwide injunction prohibiting the federal government from enforcing Executive Order 14042 – the vaccine mandate for federal contractors and subcontractors. The federal contractor mandate applies to roughly one-quarter of the U.S. workforce and affects companies that do business with the federal government.
The States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, various state agencies and certain other employers brought the action alleging that President Biden’s Executive Order exceeded his authority and requesting a preliminary injunction.
Judge R. Stan Baker agreed, stating that he was “unconvinced” that the Federal Property and Administrative Services Act authorized President Biden to direct the type of broad and unprecedented administrative actions contained in Executive Order 14042, adding that such action likely requires Congressional authorization. The court found that the plaintiffs had a likelihood of proving that Executive Order 14042 went beyond mere administration and management of procurement and contracting, and did not fall within the authority actually granted to the President by Congress. Instead, the Court reasoned, Executive Order 14042 works as a “regulation of public health. Judge Baker also rejected the government’s argument that enjoining Executive Order 14042 would permit the continued spread of COVID-19, finding that it would merely maintain the status quo.
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It continues: Virginia updates its permanent COVID-19 workplace safety standard
On August 26, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) voted 8 to 5 to update and continue its COVID-19 permanent workplace safety standard. That vote came despite the fact that the bulk of COVID-19 business requirements issued by Virginia Governor Ralph Northam ended on May
Virginia adopts new laws effective July 1 that continue to transform the employment landscape
Following last year’s wave of new employment laws (previously covered as follows: Part 1, Part 2, and Part 3), Virginia has adopted a variety of new laws that will take effect July 1 and continue to transform the Commonwealth’s employment law landscape. Virginia employers should carefully review these new laws to ensure compliance in this changing environment and in light of newly expanded enforcement mechanisms.
Minimum wage increase
While Virginia adopted incremental increases to the minimum wage set to reach $15 per hour by 2026, the first step-increase was delayed due to the pandemic. Effective May 1, 2021, the minimum wage increased to $9.50 per hour and is set to increase again effective January 1, 2022. The Virginia Department of Labor and Industry (DOLI) has issued a minimum wage guide for employers that includes an optional workplace posting announcing this increase.
The Virginia Overtime Wage Act
Governor Ralph Northam signed the Virginia Overtime Wage Act, which will take effect on July 1, 2021 and now provides overtime protections for employees under state law (previously overtime protections were only under federal law). While the new law incorporates the exemptions from overtime under the federal Fair Labor Standards Act (FLSA) and purports to graft the FLSA’s overtime protections into state law, there are several notable differences between the FLSA and Virginia’s new law.
Unlike the FLSA, Virginia’s new law (i) establishes a three-year statute of limitations thereby allowing recovery of up to three years of back wages, unlike the FLSA’s typical 2-year lookback; (ii) does not provide for any good faith defense for employers; and (iii) forecloses an employer from using the fluctuating workweek method or from paying a fixed amount to cover straight time wages for all hours worked. Accordingly, non-exempt employees paid a salary or on some other non-hourly basis are entitled to overtime for any hours worked over 40 at “one and one-half times” a regular rate of 1/40th of all wages paid for that workweek. Also unlike the FLSA, the new law’s definition of “employer” includes derivative carriers within the meaning of the federal Railway Labor Act. Unlike prior Virginia law, the new law provides for a private right of action under Virginia’s wage payment statute (with enhanced remedies enacted last year).
Continue Reading Virginia adopts new laws effective July 1 that continue to transform the employment landscape
Fourth Circuit confirms that parties can avoid appellate review of arbitration awards under the Federal Arbitration Act
Arbitration provisions can be an important tool to add more certainty to the dispute resolution process and potentially reduce costs. In Virginia, employers should carefully consider whether and how to craft arbitration agreements in the wake of groundbreaking new laws passed last year creating new employment rights that will be litigated in state courts. Reed
Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward
Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.
Background
The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.
Biden priority
On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.Continue Reading Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward
Virginia enacts first in nation permanent COVID-19 workplace safety standard
Virginia is the first state in the nation to enact a permanent workplace safety standard for COVID-19. This permanent COVID-19 standard became effective Wednesday, January 27, 2021 upon publication after review and approval earlier in January by Governor Ralph Northam and the Virginia Department of Labor and Industry’s (DOLI) Safety and Health Codes Board. While the permanent COVID-19 standard leaves in place the bulk of requirements contained in the previous temporary emergency COVID-19 workplace safety regulations, there are a number of key revisions of which employers should take note. Specifically, the permanent standard:
Continue Reading Virginia enacts first in nation permanent COVID-19 workplace safety standard
Virginia set to enact permanent COVID-19 workplace safety standard
On January 13, 2021, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board voted 9-4 to approve a permanent COVID-19 workplace safety standard, setting the stage for Virginia to become the first state in the nation to do so. In July 2020, DOLI’s Virginia Occupational Safety and Health Program (VOSH) adopted
Virginia governor issues updated COVID-19 restrictions amidst DOLI’s proposed permanent workplace safety regulations
On December 10, 2020, Virginia Governor Ralph Northam and State Health Commissioner Norman Oliver issued Executive Order 72 and Order of Public Health Emergency 9, a new 19-page Order imposing modified stay at home requirements, tightened business restrictions, and enhanced face covering requirements. Beyond tightening restrictions, the Order also outlines a wide-range of enhanced enforcement mechanisms and penalties. The Order becomes effective December 14, 2020 and is set to expire on January 31, 2021 (This new Order replaces earlier Executive Order 63/Public Health Order 5 and Executive Order 67/Public Health Order 7, both which will now expire December 13).
The same day, the Department of Labor and Industry (DOLI) announced a revised draft Permanent Standard for Infectious Disease Prevention with public comment open from December 10, 2020 to January 9, 2021. The current DOLI regulations issued in July 2020 are set to expire January 27, 2021.
Continue Reading Virginia governor issues updated COVID-19 restrictions amidst DOLI’s proposed permanent workplace safety regulations
Virginia is the first state to adopt extensive COVID-19 workplace safety regulations
On July 15, 2020, in response to Governor Northam’s Executive Order No. 63 directing the issuance of emergency regulations to control, prevent, and mitigate the spread of COVID-19 in the workplace, the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board voted 9-2 to approve extensive emergency workplace safety standards in response to COVID‑19. These new occupational safety and health requirements include a broad array of requirements for all employers in Virginia as well as additional requirements for employers with job positions in certain risk categories.
DOLI has indicated that it expects the regulations to be published this week. With exceptions for delays of certain training requirements by 30 days and development of an infectious disease preparedness and response plan by 60 days, they will become effective immediately upon publication.).
Continue Reading Virginia is the first state to adopt extensive COVID-19 workplace safety regulations