April 27, 2023
The Virginia General Assembly’s 2023 legislative session concluded with Gov. Glenn Youngkin signing 738 bills into law and amending another 78. With a divided government characterized by Republican control of the governor’s mansion and the House of Delegates and Democratic control of the Senate, and with state legislative elections looming in the fall, modest but important updates were made to employment laws in the commonwealth. This included a number of bills addressing topics ranging from employee organ donation to ID badges to confidentiality agreements.
Each of these laws is slated to take effect July 1, 2023, but Virginia employers should begin preparing now to ensure compliance.
Organ Donor Leave Law
The Organ Donor Leave Law requires covered employers to offer 60 business days of unpaid, job-protected leave to eligible employees who donate one or more of their organs, and 30 business days of unpaid, job-protected leave to employees who serve as bone marrow donors.
This law applies only to employers with 50 or more employees, although the law does not specify whether the employees must be located in Virginia for the employer to be covered. Employees are eligible only if they: (1) have been employed by the employer for at least 12 months; and (2) worked at least 1,250 hours for the employer during the previous 12 months. The employee also must be able to provide written documentation from a physician that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation.
Under the law, this leave cannot be used concurrently with leave provided by the Family and Medical Leave Act and cannot be considered a break in service for purposes of leave, seniority or other employee benefits. Employers must continue to provide health benefit plan coverage and must pay out earned commissions as they become due to employees on organ donation leave. Importantly, employers must restore returning employees to the same or an equivalent position held when the employee went on leave, unless a condition unrelated to the organ donation leave requires the employer to deny the individual’s request for restoration.
As with many employment laws, this Organ Donor Leave Law prohibits retaliation based on the employee requesting leave, taking leave or alleging a violation of the leave requirement. The law is enforced by the commissioner of the Virginia Department of Labor and Industry (DOLI) and does not create a private right of action. However, employees can file complaints about violations of the law with the DOLI, which then initiates an administrative mediation and resolution process. The statute of limitations to bring such a complaint is one year from the date the employee knew or should have known of the alleged violation, and DOLI can assess civil penalties for knowing violations in the amount of up to $1,000 for the first violation, $2,500 for the second violation and $5,000 for each successive violation.
Confidentiality Agreements, Nondisparagement, and Sexual Assault or Harassment
In 2019, Virginia passed a law that prohibits employers from requiring employees, as a condition of employment, to sign a nondisclosure or confidentiality agreement that would conceal details of a claim of sexual assault.
In 2023, the General Assembly passed HB 1895, which amends that 2019 law in two important ways. First, it expands the law to cover not only confidentiality agreements but also nondisparagement agreements. Second, it expands the law to cover not only sexual assault but also sexual harassment.
This change comes in the wake of the passage of the federal Speak Out Act, enacted Dec. 7, 2022. While the Speak Out Act prohibits enforcement of predispute agreements, the new Virginia law is not limited to predispute agreements (although it is limited to addressing only agreements entered as a condition of employment).
Prohibition on Certain Uses of Employee’s Social Security Number
The Virginia Employee ID Law prohibits all Virginia employers from using an employee’s social security number “or any derivative thereof” as the employee’s identification number. Employers also are prohibited from including the employee’s social security number or a derivative thereof on any employee identification card, badge, access card, or other similar card or badge issued to the employee. This law, which does not contain a private right of action, is enforced by DOLI, and subjects employers to fines of up to $100 per violation.
Virginia Phase-Out of FLSA Subminimum Wage Certificates
Under Section 14(c) of the federal Fair Labor Standards Act (FLSA), employers that employ individuals with disabilities and meet certain other criteria may apply to the U.S. Department of Labor for a certificate that permits them to pay such individuals a subminimum wage. Historically, the Virginia Minimum Wage Act likewise has exempted such individuals from its minimum wage protections.
In 2023, the General Assembly amended the Virginia Minimum Wage Act to limit use of this exemption. Under the law, this exemption will be removed effective July 1, 2030, and as of July 1, 2023, only individuals currently paid a subminimum wage by a Section 14(c) certificate holder will continue to be exempted from the Virginia Minimum Wage Act through July 1, 2030.
Virginia employers should review their policies, handbooks and agreement templates to prepare to comply with these new laws. For further information or questions about these or any other aspects of Virginia employment law, please contact the authors of this alert or any other member of the firm’s labor and employment group.