August 7, 2020
On July 1, 2020, the Virginia Values Act, which expands the breadth of the Virginia Human Rights Act (VHRA) considerably, went into effect. Both employers and employees alike are well-advised to consider how these changes affect their work and their ongoing business.
The Virginia Values Act amended the Virginia Human Rights Act, expanding the employers it covers and adding new employee protections. The most notable of these changes include:
Formerly, an employee’s damages could not exceed 12 months of back pay – with no punitive or compensatory damages available – and employees were entitled to only limited recovery on attorneys’ fees, which were capped at 25 percent of the total back-pay award. These limitations have been removed, and employees can now seek damages for all of the following:
Before filing against a claim against his or her employer, an employee must first obtain a right to sue letter by submitting an administrative charge to the Virginia Division of Human Rights. after receipt of a determination letter, the employee then has 90 days to file his or her civil action against his or her employer.
This time constraint, however, is waived for those employees who’ve been discriminated against based on pregnancy, the birth of a child, or a medical condition related to either of these. Further, employers are required to prominently post – and disseminate – the prohibitions against pregnancy-based discrimination and the related right to reasonable accommodations for known pregnancy-related limitations.
An important consideration for employers is that, while discrimination cases were typically filed in federal court, they are now more likely to be filed in state courts, where access to summary judgment is less common. In the past, many employers counted on summary judgments to stop many cases from proceeding to trial. In practical terms, employers can reasonably expect to see more claims make it to trial as a result of the Virginia Values Act.
In addition to the Virginia Values Act, two important wage-related acts have also become law, including:
The Virginia Values Act eliminates the uncertainly related to classifying employees as independent contractors that some employers have taken advantage of over the years. Under the Act, all workers are deemed employees unless their employers can prove otherwise. Such proof must include the application of the IRS’s stringent requirements for contract workers.
If misclassified as an independent contractor, the employee can now – under the Virginia Values Act – seek damages for all lost wages, salary, and employees benefits, which can include those expenses that would have been covered by insurance, the cost of bringing the case against the employer in the first place, and all reasonable legal fees. The employer may also experience penalties levied by the Virginia Department of Professional and Occupational Regulation (DPOR). Finally, construction contractors should take special note that, under the Values Act, they may now share liability for any misclassification of workers made by subcontractors.
Employees’ whistleblower protections have also been expanded, and as of July 1, 2020, whistleblower protections apply to employees in all of the following situations:
With the implementation of the Virginia Values Act comes newly-minted restrictions regarding the enforcement of non-compete agreements for those classified as low-wage earners. This low-wage label is reserved for those who earn less than $59,124 annually (with some caveats for sales- and commission-based workers). Not only are employees entitled to seek compensation for their damages, but employers can also face considerable fines per violation.
Virginia employers are well-advised to take careful note of the full range of employee protections offered by the Virginia Values Act. The corporate attorneys at McClanahan Powers, PLLC, are committed to helping you effectively and efficiently transition to careful compliance with these legal changes – in both your daily operations and your business overall. Whatever your corporate legal concerns, please don’t hesitate to contact or call us at 703-520-1326 today.