Governor Ralph Northam

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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 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 March 30, 2020, the governor issued Executive Order 55 requiring all individuals in Virginia to stay in their place of residence, with certain limited exceptions, until June 10, 2020. Specifically, the order permits individuals to leave their homes for the following purposes:

  • Obtaining food, beverages, goods, or services as permitted in Executive Order 53;
  • Seeking medical attention, essential social services, governmental services, assistance from law enforcement, or emergency services;
  • Taking care of other individuals, animals, or visiting the home of a family member;
  • Traveling required by court order or to facilitate child custody, visitation, or child care;
  • Engaging in outdoor activity, including exercise, provided individuals comply with social distancing requirements;
  • Traveling to and from one’s residence, place of worship, or work;
  • Traveling to and from an educational institution;
  • Volunteering with organizations that provide charitable or social services; and
  • Leaving one’s residence due to a reasonable fear for health or safety, at the direction of law enforcement, or at the direction of another government agency.

Continue Reading Virginia update: Governor issues temporary stay-at-home order and other measures to address COVID-19

As part of Virginia’s ongoing response to COVID-19, on March 23, 2020, Governor Ralph Northam issued Executive Order 53 temporarily closing recreational and entertainment businesses and restricting certain other non-essential businesses statewide. The order also bans gatherings of more than 10 people and closes K-12 schools for the remainder of the academic year. These closing and other restrictions are effective from 11.59 p.m. on Tuesday, March 24, 2020 through 11.59 p.m. on Thursday, April 23, 2020.

Recreational and entertainment businesses temporarily closed

The order requires the one-month closing of the following recreational and entertainment businesses:

  • Theaters, performing arts centers, concert venues, museums, and other indoor entertainment centers.
  • Fitness centers, gymnasiums, recreation centers, indoor sports facilities, and indoor exercise facilities.
  • Beauty salons, barbershops, spas, massage parlors, tanning salons, tattoo shops, and any other location where personal care or personal grooming services are performed that would not allow compliance with social distancing guidelines to remain 6 feet apart.
  • Racetracks and historic horse racing facilities.
  • Bowling alleys, skating rinks, arcades, amusement parks, trampoline parks, fairs, arts and craft facilities, aquariums, zoos, escape rooms, indoor shooting ranges, public and private social clubs, and all other places of indoor public amusement.

The order also requires the temporary closing of dining and congregation areas in restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers’ markets. However, these businesses may offer delivery and take-out services as long as they are able to comply with social distancing and hygiene requirements.Continue Reading Virginia’s response to COVID-19: temporary closure of recreational and entertainment businesses, restrictions on other non-essential businesses and school closures