Keeping track of the latest changes to federal employment laws, such as the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA), to name just a few, is hard enough.  But employers sometimes forget that there are also specific state laws, some of which differ significantly from federal laws that can land them in just as much trouble for noncompliance.

Understanding the requirements and obligations of Virginia state employment laws will help your company navigate the legal pitfalls of the modern workplace and reduce the likelihood of successful claims against your company.

1.     The Virginians With Disabilities Act

The ADA is a federal law that applies to employers with more than 15 employees and prohibits discrimination against qualified individuals with a disability.  The ADA undoubtedly serves a commendable purpose, but the complexity of this law—including the steady rise in requests for “reasonable accommodations” by employees – frequently results in a complicated and time-consuming process for employers.

For smaller employers that may be thankful that they have fewer than 15 employees, you don’t get off quite that easily.  The Virginians with Disabilities Act (VDA) essentially mirrors the ADA and applies to all employers, regardless of size.  Under the VDA, employers must provide reasonable accommodations to qualifying individuals unless it would create an “undue burden.”  Unlike the ADA, there is a presumption under the VDA that any accommodation that costs more than $500 creates an undue burden for employers with fewer than 50 employees.

2.     Pre-Employment Inquiries Regarding Criminal Convictions

Although there is no federal law that clearly prohibits employers from asking about arrests and convictions during the pre-employment stage, the EEOC has strongly discouraged such inquiries.  Virginia law currently favors employers in this area and only restricts inquiries into “any arrest or criminal charge against [an applicant] that has been expunged [i.e., sealed through a legal proceeding].” 

As such, employers may (cautiously) inquire into an applicant’s arrest or conviction history if the inquiry is not aimed at discovering charges that have been expunged.  However, employers should heed the EEOC’s warning that such inquiries could lead to potential liability for disparate impact (i.e., disproportionately affect minority applicants).  A willful violation of this law could result in a Class 1 misdemeanor (i.e., up to 12 months in jail, a fine of up to $2,500, or both).

In April 2015, Virginia Governor Terry McAuliffe signed an executive order “banning the box” on most state employment applications and “encouraging” private employers to do the same.  Similarly, several municipalities in Virginia have passed so-called “ban the box” laws.  In short, employers are well-advised to tread lightly in this area and to inquire into criminal backgrounds only when doing so is job-related and consistent with business necessity. 

3.     The Virginia Wage Payment Act

Virginia law controls when your workers must be paid for their services.  Under the Virginia Wage Payment Act (VWPA), salaried employees must be paid at least once a month.  Hourly employees, however, must be paid at least once every two weeks.  Also, any employee who is discharged must be paid “on or before the date on which he would have been paid for such work had his employment not been terminated.”  In other words, a discharged employee should be paid for all hours worked by the next regularly scheduled pay period following the termination. 

The VWPA also imposes restrictions on withholding wages from employees’ paychecks.  Specifically, the law provides that “[n]o employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without the written and signed authorization of the employee” (emphasis added). As such, employers should obtain a written and signed authorization prior to withholding anything other than payroll, wage, or withholding taxes from a paycheck.  Also, employers should ensure that the amount withheld does not drop the employee’s hourly wage rate below the federal minimum wage of $7.25 per hour. 

The penalties for failing to comply with the VWPA range from a Class 1 misdemeanor (if the value of the wages earned and not paid by the employer is less than $10,000) to a Class 6 felony (if the value of the wages earned and not paid by the employer is $10,000 or more).

4.      Willfully Preventing A Former Employee From Obtaining Employment

Former employers are frequently contacted for reference checks before a hiring decision is made.  Before offering a scathing account as to why you had to fire an employee, remember that it is unlawful in Virginia to “willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, [a] discharged employee or [an] employee who has voluntarily left from obtaining employment with any other person.” 

As a result of laws like this, most employers have adopted the common policy of providing only the employee’s date of separation, rate of pay, and job title in response to inquiries from prospective employers.  Fortunately, the same law offers some protection to employers and provides that the law shall not be construed as prohibiting a former employer from making “a truthful statement of the reason for such discharge, or a truthful statement concerning the character, industry and ability of such person who has voluntarily left.”

5.     Special Duties Owed To Employees Who Are Victims of Crimes

Under Virginia law, every employer must allow an employee who is a victim of a crime to leave work to attend all criminal proceedings relating to a crime against the employee.  Employers are not required to compensate employees for such absences, but may not discharge an employee for exercising the right to attend a criminal proceeding.  Furthermore, employers may not refuse to hire, or discriminate against, an individual because the individual leaves work to attend a criminal proceeding.  Indeed, employers may only limit the duration of an employee’s leave if the employee’s leave creates an undue hardship to the employer’s business.

6.     Employers May Not Require Employees To Disclose Usernames and Passwords To Social Media Accounts.

For those who were hoping to gain access to your job applicants’ stash of pictures and comments on Facebook, think again.  Virginia recently joined other states that have prohibited employers from requiring a current or prospective employee to: (1) disclose the username and password to a social media website or (2) add an employee, supervisor, or administrator to the list of contacts (i.e., “friends”) associated with the current or prospective employee’s social media account.

This law is not without exceptions, however.  For instance, if an employer inadvertently receives an employee’s username and password to a social media account through the employee’s use of an electronic device provided by the employer (i.e., a company-issued laptop or smartphone) or a program that monitors an employer’s network, the employer is not liable for having the information, but may not use the information to gain access to the employee’s social media account.

Similarly, an employer may ask an employee to disclose his or her username and password if the employee’s social media account “is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies.”  Thus, the law would seem to allow an employer to request access to an employee’s social media accounts if the employee is under investigation for conduct such as unlawful harassment or discrimination in violation Title VII of the Civil Rights Act of 1964.

In conclusion, Virginia employers should be aware of the numerous state-specific laws that can affect their businesses.  In assessing the potential risk of liability in any employment-related decision, employers should work closely with their human resources departments and legal counsel to evaluate the potential impact of both federal and state employment laws.  Doing so can greatly reduce your company’s exposure to potential claims.

Tevis Marshall is of counsel in the Richmond office of Ogletree Deakins.


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