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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

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

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

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

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

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

As numerous states begin to reopen, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) recently announced a revised recordkeeping enforcement memorandum, effective May 26, 2020, that outlines when employers must record COVID-19 cases as a work-related illness.  This revised guidance replaces OSHA’s previous April 2020  memorandum and removes the relaxed application of the agency’s recordkeeping requirements contained therein.  Thus, OSHA’s prior, noticeably more stringent requirements apply as of May 26, 2020.  OSHA has also updated its Interim Enforcement Response Plan for Coronavirus to reflect the updated enforcement guidance, and indicated that the agency is increasing in-person inspections at all types of workplaces.
Continue Reading OSHA revises COVID-19 recordkeeping requirements

On May 8, 2020, Virginia Governor Ralph Northam issued Executive Order 61 outlining Phase One of the commonwealth’s plan to gradually ease temporary public health and business restrictions related to COVID-19, effective May 15, 2020, through at least June 10, 2020. Since issuing Executive Order 61, however, Governor Northam issued Executive Order 62 delaying this reopening for the following jurisdictions through at least May 28, 2020: the counties of Arlington, Fairfax, Loudoun, and Prince William, the cities of Alexandria, Fairfax, Falls Church, Manassas, Manassas Park, and the Towns of Dumfries, Herndon, Leesburg, and Vienna. The order stated that the Northern Virginia region has about a 25-percent rate of positive tests for COVID-19, while the rest of the commonwealth is closer to 10 percent. In addition, just hours before reopening was set to take effect, Governor Northam amended Executive Order 62 to also exclude the City of Richmond and the County of Accomack from the May 15 reopening.

The Executive Orders outline the following Phase One requirements for Virginia (except for the excluded counties):
Continue Reading Virginia update: Governor loosens pandemic restrictions, except in Northern Virginia, Richmond City, and Accomack County

As we previously reported on April 23 and April 27, 2020, in the midst of the COVID-19 pandemic dominating the news, Virginia Governor Ralph Northam recently signed into law a slew of bills passed earlier this year by the General Assembly that transform Virginia’s employment laws. This is the third in a series of alerts discussing the groundbreaking new laws governing workplace discrimination, worker misclassification, wages, restrictive covenants, and employee whistleblowers. Parts 1 and 2 are here and here.

Significant expansion of Virginia’s wage payment law

 Governor Northam signed into law two somewhat conflicting bills (H.B. 123 and S.B. 838) amending Virginia’s wage payment statute (Va. Code § 40.1-29). Both bills create a private cause of action against an employer who fails to pay wages in accordance with the law’s requirements. S.B. 838 also establishes additional criminal and civil liabilities for contractors and subcontractors. Damages in both bills include wages due plus statutory interest, an additional equal amount as liquidated damages, and reasonable attorney’s fees and costs. For a knowing violation, an employee can recover an amount equal to triple the amount of wages due plus reasonable attorney’s fees and costs. The law broadly defines “knowingly” as where the employer (i) has actual knowledge of the information, (ii) acts in deliberate ignorance of the truth or falsity of the information, or (iii) acts in reckless disregard for the truth or falsity of the information. Proof of actual intent to defraud the employee is not required. The statute of limitations for a wage payment action is three (3) years. The Virginia Code Commission will codify the amendments, which take effect on July 1, 2020.
Continue Reading Virginia adopts a wave of new employment laws. Part 3 – Wage payment laws

As we previously reported on April 23, 2020, in the midst of the COVID-19 pandemic that is dominating the news, Virginia Governor Ralph Northam signed into law a slew of bills passed by the General Assembly that transform Virginia’s employment laws. This is the second part of a series of alerts discussing Virginia’s groundbreaking new laws governing workplace discrimination and retaliation, worker misclassification, wages, restrictive covenants, background checks and whistleblower claims [Part 1 is here].

Employers will be subject to substantial liability for misclassification of employees

On March 10 and March 18, 2020, respectively, Governor Northam signed into law H.B. 984 and S.B. 894, which create a private right of action against employers for misclassifying employees as independent contractors. The new law, set to take effect July 1, 2020, will expose employers who misclassify employees as independent contractors to substantial liability, as employees bringing such actions may recover damages for lost wages/salary (including overtime worked, but not paid), employment benefits, or other lost compensation, as well as reasonable attorney’s fees and costs. Most notably, employers will face an uphill battle in defending these claims because the law creates a general presumption that an individual is an employee unless the employer can establish independent contractor status based on Internal Revenue Service guidelines.
Continue Reading Virginia adopts a wave of new employment laws. Part 2 – Worker classification and clampdown on restrictive covenants