Brief Summary: The District of Columbia’s “Ban on Non-Compete Agreements Amendment Act of 2020” was signed into law in January 2021. This ban defines an employee as an “individual who performs work in the District on behalf of an employer and any prospective employee who an employer reasonably anticipates will perform work on behalf of the employer in the District.” The Act’s enforceability is tied to the District’s Fiscal Year 2022 budget and was originally set to go into effect on or around March 16, 2021. This date was recently pushed back to April 1, 2022 at the earliest.
Virginia Employment Law Update – July 2021
Several important employment laws became effective in the state of Virginia recently:
Minimum Wage Increase
Summary: All Virginia employees must earn at least $9.50 an hour.
The first increase to Virginia’s minimum wage became effective on May 1, 2021. Va. Code § 40.1-28.10 established a new base minimum wage at the greater of $9.50 per hour or the Federal minimum wage. Since the Federal minimum wage is currently still $7.25 per hour, the Virginia minimum wage applies. The minimum wage is the same for all non-exempt public and private sector employees but is not binding on the Federal Government. On January 1, 2022, Virginia’s minimum wage increases yet again to $11.00 per hour. If the Federal minimum wage surpasses the Virginia minimum wage at any time, the Federal minimum wage will immediately supplant Virginia’s minimum wage.
The Virginia Overtime Wage Act
Summary: Virginia state law now requires that employers pay employees overtime for worktime over 40 hours a week. Additionally, employees may claim up to three years of unpaid overtime, and liquidated damages apply automatically if an employee brings a claim of unpaid overtime. Finally, fluctuating workweeks are prohibited.
Effective July 1, 2021, the Virginia Overtime Wage Act (“VOWA”) incorporated into Virginia state law some of the Federal overtime protections codified in the Fair Labor Standards Act (“FLSA”). Salaried non-exempt employees are now entitled to overtime wages for any hours worked over 40 hours in a week at one and one-half times the regular rate of wages for that workweek. Under Virginia’s new law, employees now have a private right of action under Virginia’s wage payment statutes. This does not supplant FLSA, but rather creates a new claim for employees to bring along with any claims under FLSA.
VOWA offers distinct employee protections and employer obligations that are not currently available under FLSA. First, VOWA established a three-year statute of limitations, unlike the FLSA’s two-year statute of limitations. This means that employees can claim their unpaid overtime wages for the past three years. Second, under VOWA, liquidated damages are automatic since Virginia employers are prohibited from using any good faith defense. Additionally, knowingly violating the VOWA may result in increased damages. Third, unlike FLSA, VOWA’s definition of “employer” includes any person acting directly or indirectly in the interest of an employer regarding an employee, including derivative carriers as defined by the Federal Railway Labor Act. Fourth, because of the new overtime wage calculation, the VOWA prohibits the use of certain overtime compensation schemes, namely the fluctuating workweek method. Furthermore, piece and day rate schemes must be adjusted to comply with the new law. Finally, the VOWA does not apply to the following types of employees:
- Any individual who volunteers solely for humanitarian, religious, or community service purposes for a public body, church, or nonprofit organization that does not otherwise employ such individual;
- Any person who is exempt from the Federal overtime wage pursuant to 29 U.S.C. § 213(a); and
- Any person who meets the exemptions set forth in 29 U.S.C. § 213(b)(1) or 213(b)(11).
Expansion of the Virginia Human Rights Act
Summary: Virginia now prohibits discrimination against individuals with disabilities, including pregnancy. Further, domestic workers now have several employment-related protections, including any protections provided by the VHRA, wage payment, and workplace safety.
Governor Northam signed several bills—H.B. 1848, H.B. 1864, H.B. 2032, and S. B. 1310—which expanded the Virginia Human Rights Act (“VHRA”) and became effective on July 1, 2021.
First, under Va. Code § 51.5-41 disabilities are now included on the list of protected characteristics under the VHRA. Employers are now required under state law to make reasonable accommodations for all known qualified disabilities unless an employer can demonstrate that the accommodation would impose an undue hardship. Furthermore, employers cannot discriminate against individuals with disabilities who request accommodations by taking adverse action against such employees in response to an accommodation request, such as denying employment or promotion opportunities to an otherwise qualified individual because of their need for accommodations, requiring an employee to take leave when there are other feasible accommodations available, or by failing to strategize and discuss reasonable accommodations in a good faith and timely manner.
Employers must make information regarding an employee’s rights to reasonable accommodation for disabilities available by (1) placing the information in a conspicuous location on the premises (2) including it in employee handbooks, and (3) providing such information to new employees and any employee within 10 business days of the employee’s notice of a disability.
Second, Va. Code § 2.2-3905, Va. Code § 40.1-29, Va. Code § 40.1-49.3, Va. Code § 40.1-49.8 have each been amended to extend the coverage of the VHRA, wage payment laws, and workplace safety protections to domestic workers. A domestic worker is defined as:
[A]n individual who is compensated directly or indirectly for the performance of services of a household nature performed in or about a private home, including services performed by individuals such as companions, babysitters, cooks, waiters, butlers, valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, gardeners, home health aides, personal care aides, and chauffeurs of automobiles for family use. “Domestic worker” does not include (i) a family member, friend, or neighbor of a child, or a parent of a child, who provides child care in the child’s home; (ii) any child day program as defined in § 22.1-289.02 or an individual who is an employee of a child day program; or (iii) any employee employed on a casual basis in domestic service employment to provide companionship services for individuals who, because of age or infirmity, are unable to care for themselves.
New Office of Civil Rights within the Officer of the Attorney General
Effective July 1, 2021, the Office of Civil Rights was created under Va. Code § 2.2-520 to aid in enforcing state civil rights protections, namely, to investigate and bring actions against discrimination of protected classes.
Medical Use of Cannabis Oil and the Legalization of Recreational Marijuana
Summary: Physicians may prescribe cannabis oil to their patients and non-Federal employers cannot ask that applicants or employees disclose any information regarding past marijuana-related offenses. However, employers may still restrict the use of marijuana during work hours and discipline employees who come to work under the influence of recreational marijuana.
Effective on July 1, 2021, Va. Code § 40.1-27.4 prohibits employers from discharging, disciplining, or discriminating against an employee for the lawful use of cannabis oil under a valid written certification issued by a medical practitioner for treatment as authorized by Va. Code. § 54.1-3408.3 and Va. Code § 40.1-27.4. Medical marijuana is not subject to this protection. Employers can still discipline an employee for work impairments caused by using cannabis oil. Likewise, employers can prohibit employees from possessing cannabis oil during work hours. It is unclear at this time whether using cannabis oil during work hours could be requested as a reasonable accommodation for a qualified disability. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC over 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Furthermore, as of July 1, 2021, Va. Code § 18.2-248.1 has been amended to allow adults over the age of 21 to possess one ounce of marijuana under Virginia law. Other updates have been made to permit the expungement of all past marijuana misdemeanor and felony convictions if the proper procedures are followed. Consequently, a Virginia private or state employer cannot require an applicant to disclose any information related to an arrest, criminal charge, conviction, or civil offense that has been expunged and is related to the use or possession of marijuana. Federal employers located in Virginia may are excluded from this law.
Employers may still enact policies that restrict and discipline employees under the influence of recreational marijuana while at work. Marijuana continues to be an illegal substance under the Federal Controlled Substances Act. In general, employers may lawfully ban the use of marijuana in any form, including cannabis oil, by employees in positions that are regulated by outside authorities, are safety-sensitive, or are performing work under Federal contracts.
Paid Sick Leave
Summary: Employers of certain home health workers must now provide up to 40 hours of paid sick leave annually.
Under Virginia’s Paid Sick Leave Law, effective on July 1, 2021, employers must provide paid sick leave to home health workers who work, on average, at least 20 hours per week or 90 hours per month. One hour of paid sick leave must be provided for every 30 hours worked. However, an employee cannot accrue more than 40 hours of sick leave per year unless the employer selects a higher limit. Employers with existing paid sick leave policies that meet the requirements of this law are not required to provide additional sick leave to any employee that is eligible under the law.
Sick leave may be used for an employee and their family members (1) to care for a mental or physical illness, injury, or health condition; (2) to obtain a medical diagnosis, care, or treatment of a physical or mental illness; and (3) to provide preventative medical care. An employer that requires notice of the need to use paid sick leave must provide employees with a written policy explaining the appropriate procedures. Employers cannot condition the use of paid sick leave on an employee searching for or finding a replacement worker to cover their hours. Employers cannot retaliate or otherwise discriminate against an employee for using their accrued sick leave. See Va. Code § 40.1-33.5.
This new law does not apply to employees who (1) are licensed, registered, or certified by a health regulatory board within the Department of Health Professions, (2) are employed by a hospital that is licensed by the Department of Health, and (2) work, on average, 30 hours or less per month.