Commonwealth of Virginia Labor Laws

Virginia labor laws

Note: This article only covers private sector HR compliance laws.

While Virginia is generally considered an “employer-friendly” state (and not generally a great state for workers, in terms of worker protections and union rights), there are still state-specific labor laws which anyone doing business in the state as an employer should be aware of and be legally compliant with. If you are conducting business in the commonwealth of Virginia as an employer, you want to be on top of the changes in Virginia labor law to prevent potential financial penalties and keep employees happy. This guide will provide you with the necessary information regarding labor laws and local regulations to help you maintain compliance throughout 2023, while keeping the legal and statutory language to a minimum. Many of these laws are contained in the Code of Virginia, Title 40.1 Labor and Employment.

Minimum Wage

Effective January 1, 2023, the minimum wage in Virginia has increased to $12.00 per hour, up from $11.00 per hour in 2021 (per Article 1.1 of the Virginia Minimum Wage Act, § 40.1-28.10). In addition:

  • This minimum wage will increase to $13.50 per hour January 1, 2025.
  • This only applies to individual employees who are at least 16 years old, including home care providers. The exclusions to this rule are many and include golf course caddies, farm laborers, volunteers, commission based outside sales people, and students participating in a bona fide education program (interns).

Noncompliance penalties: For minimum wage violations or wage theft, employers can be punished with a fine between $10 and $200. Also, employees may be due unpaid minimum wages, plus interest 8% per year, calculated from the first date in which wages are due. Employers may also be required by the court to pay reasonable attorneys fees incurred by plaintiff employees.

Overtime

In Virginia, non-exempt employees are entitled to overtime pay at a rate of 1.5 times their regular rate of pay for all hours worked over 40 hours in a workweek, which matches the Federal standard established by FLSA. Exempt employees, such as executives and professionals, and other employees with special exemptions are not entitled to overtime pay.

Noncompliance penalties: Failure to pay overtime to non-exempt employees opens the employer up to legal action from employees and former employees. The court may order payment of all owed overtime wages, plus an additional equal amount as liquidated damages. Additionally, employees may be able to recover reasonable attorneys’ fees and costs if they pursue legal action.

Let’s assume that you were acting in good faith with your employees, and unpaid due overtime was unintentional or unbeknownst to you. If you as the employer can show that this is true to the satisfaction of the court, the court can decide to reduce or eliminate the liquidated damages.

Paid Sick Leave

When HB 2137 passed in 2021, it initiated a statewide paid sick leave requirement for employers which are not agencies of the federal government, and have 50 or more employees. But here is the thing: Under the law, only home health employees who work on average at least 20 hours per week or 90 hours per month are entitled to paid sick leave. This does not include certified health employees working at a hospital who also work 30 hours per month or less on average. Further attempts to cover a greater classification of employees have so far failed in the Virginia House and Senate (2023).

Accrual and Use Details:

  • Accrual rate: A minimum of one hour of paid sick leave for every 30 hours worked
  • Accrual rate exceptions: Overtime exempt employees are assumed to work 40-hour workweeks for accrual purpose
  • Accrual start date: Upon employment start
  • Rate basis: Annual accrual based on calendar year start
  • Who pays the leave: The employer in the next reasonable payroll period after employee request
  • Use: The sick leave may be used for employees or “family members,” which is very loosely defined in the Article, and employees should provide good faith effort to provide notice of use

Applicable employers should have a compliant Paid Sick Leave policy. That means that the employer cannot require as a matter of policy and condition for sick leave use, unreasonable advance notice, replacement work coverage, or medical documentation for less than three days of consecutive leave.

Note: Retaliation against employees requesting their paid sick leave is prohibited.

Noncompliance penalties: Noncompliance penalties are not specifically defined in this law. Unfortunately for the employer, this still leaves you open for legal action from employees who may have grievances regarding the employer’s noncompliance or retaliation.

Paid Family and Medical Leave

There are no Virginia laws on the books which create additional leave rights for private sector employees. As an employer or employee, you may defer to the requirements established by the Family & Medical Leave Act.

Crime Victims Leave

This law requires employers to allow employee who is a crime victim to leave work to attend criminal proceedings related to a crime specifically, against that employee, but so long as the employee provided the employer with a copy of the legal affidavit or form. The employer is required to allow the employee to attend, and not terminate or refuse to hire on account of the crime victims leave, but is not required to pay the employee for the leave.

The employee should provide a copy of the scheduled criminal proceeding notice, Even so, when the leave creates an undue hardship to the employer over time, the leave can be limited by the employer.

Civil Air Patrol Leave

Civil Air Patrol volunteer members are entitled to leave of absence from their job, without loss of seniority, accrued leave, benefits, or efficiency rating during their deployment to the Air Patrol, for the following timeframes:

  • 10 workdays per federal fiscal year for emergency mission training
  • 30 or less workdays per federal fiscal year for actual emergency missions

These employees may request leave by showing authorization from the Civil Air Patrol authorities, or associated powers such as USAF or the Governor. Civil Aire Patrol Leave is unpaid, but employees may choose to use other paid leave for this purpose until exhausted.

Noncompliance penalties: Employees may bring civil action against the employer for grievances regarding their Civil Air Patrol leave, and may recover lost wages, reasonable attorney fees, and court costs incurred paid for by the employer.

Anti-Discrimination

As part of § 40.1-33.2 (Code of Virginia, Article 2 of Chapter 3 of Title 40.1), employers are prohibited from firing employees or discriminating in any other way against an employee because they have:

  • filed a complaint,
  • testified, or,
  • influenced a compliant to be filed.

Noncompliance penalties: If an employee feels that they have been discriminated against, they may file a complaint with the Commissioner of Labor and Industry. The Commissioner may seek remedies that include reinstating the employee’s status and recovering lost wages plus liquidated damages.

Workplace Safety

The Occupational Safety and Health Act (OSHA) requires employers to provide a safe and healthy workplace for their employees. Employers must comply with OSHA regulations and provide employees with training, protective equipment, and other necessary measures to ensure workplace safety.

The state law which provides specific health and safety worker protections is the Virginia Occupational Safety and Health (VOSH) Law.

Who does VOSH apply to: All public and private sector employers and their facilities, excluding federal employees and places of work within the Virginia borders in which Virginia has no jurisdiction. The Virginia Department of Labor and Industry enforces VOSH.

Due to the diverse industries operating in Virginia, the programs which fall under VOSH are massive, and difficult to capture in a single post. It’s best to check out the DOLI website itself to find the specific program you’re looking for. Some of the key provisions of the VOSH Act include:

  • Machinery, vehicle, tool, material, or equipment not compliant with manufacturer instruction is prohibited.
  • Per § 40.1-51.1, Employers must comply with all applicable safety and health standards and have a duty to provide a safe work environment.
  • Employers must provide employees with training on safety and health hazards.
  • Employers must investigate accidents and injuries.
  • Employers must correct any hazards that are identified.
  • Retaliation against employees for reporting incidents is prohibited.
  • Employees have a right to attend or send a representative to attend safety inspections commissioned by the Commonwealth.

Noncompliance penalties: VOSH may conduct investigations into workplaces with reported incidents. If, upon findings confirm violations penalties as fines may be assessed. For investigations opened on or after August 1, 2022, the statutory maximum penalties are:

Serious and Other-than-serious             From $13,434 to $14,270

Willful and Repeat                                     From $134,333 to $142,691

Failure-to-Abate                                         From $13,434 per day to $14,270 per day

Specific remedies for discrimination in accordance with § 40.1-51.2:2 include reinstatement or rehiring and backpay plus interest no greater than 8% per year. However, in order to seek relief, the employee must file a complaint within 60 days of the violation for which the employee was discharged or discriminated. Upon conclusion of investigation brought by the Commissioner of DOLI, and if violations of specific VOSH provisions have been found, the Commissioner may bring charges to the circuit court, and if the Commissioner refuses, the employee may bring charges.

Workers’ Compensation

The Virginia Workers’ Compensation Commission enforces the Virginia Workers’ Compensation Act, which provides benefits to employees who are injured or become ill on the job, as well as survivor benefits to dependents killed in work-related accidents. The Act does not oversee insurance regulation on pricing, rates, or audits; that responsibility belongs to the Virginia Bureau of Insurance. The Act defines elements of the Commonwealth’s workers’ comp:

Who is eligible for benefits: In Virginia, employees eligible for workers’ compensation benefits can be:

  • Full-time and part-time employees including minors and people with temporary work visas
  • Seasonal and temporary workers
  • Apprentices, trainees, or retrainees regularly employed by an employer
  • Virginia National Guard members, whether on duty or working voluntarily
  • Regular & volunteer emergency service providers including volunteer firefighters
  • Sole proprietors, corporation shareholders, and LLC members/partners who chose to elect for coverage as employees
  • County, city, and other municipal employees in the Commonwealth, including government
  • Independent contractors who are considered employees under the law (employees of subcontractors)

Note

To clarify about Independent contractors being considered as employees, this has nothing to do with the IRS, U.S. Department of Labor, and state ABC tests for contractor independence. This is in reference to the use of subcontractors in trades such as construction, and VWCA assigning workers’ compensation responsibility over these contractors as if they were directly employed by the original contracting company ordering the covered work. VWCA excludes property managers under this rule.

Who is not eligible for benefits:

  • Taxi drivers with exclusion documentation
  • Domestic servants
  • Casual” employees
  • Farm and horticultural laborers, where the employer has less than three full-time employees
  • Most employees of multistate railroad operators
  • Commonwealth officials appointed by the Governor or elected by the General Assembly
  • Employees who suffer injuries which fall in the jurisdiction of another Act

Employer requirements: Employers with three or more employees are required to carry workers’ compensation insurance. Employers with one employee may be required to carry workers’ compensation insurance if they meet certain criteria, such as the type of work their employees do, and the industry for which that work is done.

Insurance: Covered employers must acquire their workers compensation insurance through a commercial insurance carrier or their PEO. They must be covered with a sufficient policy at all times, not just when accidents occur.

Injury reporting: Employees may report incidents for workers’ comp claims, as well as employer violations.

  • Employees should report injuries to the employer on a form like this as soon as possible, but no later than 30 days after the accident.
  • Employers
  • After filing injury and illness report with the employer, employees or their representative should file their claim online or via snail mail. This must be done no later than two years after the accident.
  • The employer can also file for the employee, particularly when the injury is presumed to be work-related or the employee is incapacitated.
  • Employees can report non-compliance with the VENCA web form.

When is an injury presumed to be work-related? When the employee:

  • Is physically or mentally unable to testify as confirmed by competent medical evidence;
  • Dies with there being no evidence of regained consciousness after the accident;
  • Dies at the accident location or nearby; or
  • Found dead where reasonably expected to be as an employee.

How to qualify for benefits: Employees must report their injuries or illnesses to their employers within 30 days of the date of the injury or illness. Employees must also file a claim with the Virginia Workers’ Compensation Commission (VWCC) within two years of the date of the injury or illness.

Additional Key Rules:

  • A worker may not collect workers’ compensation from both the principal contractor and the subcontractor, but is not prevented from collecting from either.
  • An employee may only collect workers’ compensation from the employer.

Employer Duties:

  • Employers have a duty to respond to inquiries that arise as a result of employee non-compliance submissions, and comply with requests for documents.
  • At the time of an accident, the employer should provide the employee the names of at least three physicians the employee can choose from for treatment.
  • Employers must notify the insurer of employee injuries upon receiving injury & illness reports or notice of injury. Notifying the Commission directly is also an option but is generally a bulkier process.
  • Employers should complete the Wage Chart (VWC Form No. 7A) within 21 days of the date of the accident.
  • Employers must retain records of all on-the-job injuries, illnesses, or deaths of employees. OSHA requires five years of document retention from the date of accident. Many legal professionals used to dealing with long-term workers comp issues actually recommend the employer retain these documents for up to 30 years or the life of the organization.
  • Employers must ensure employees are trained to prevent injuries at work.
  • Employers who contract and subcontract should file a Form 61A Certificate of Workers’ Compensation Insurance with the VWCC here.

Noncompliance penalties: If you fail to obtain coverage or fail to report workers’ compensation reportable incidents, you can be assessed a civil from $500 up to $5,000 by the Commission.

For violations of payroll reporting requirements (self-insured only), if deemed guilty by the Commission and convicted, you can be fined $100 to $1,000 or imprisoned for ten to ninety days, or both.

Unemployment

Virginia Employment Commission administers the unemployment insurance program in the Commonwealth. The program provides temporary unemployment benefits to eligible employees willing to work, who have lost their job through no fault of their own. Employers in Virginia are required to pay unemployment insurance taxes and to comply with certain reporting and notification requirements.

Who pays the taxes? Employers are liable for unemployment tax if they have had quarterly payrolls in excess of $1,500 gross or more, or have had an employee for 20 or more weeks in the calendar year.

Employers have a duty to respond to agency notifications, and should do so via SIDES, the online platform from which employers may view notices, upload documentation, and reply to unemployment claims filed by former employees.

Noncompliance penalties: Employers filing unemployment taxes late shall be assessed $100 for each quarter that is filed after the due date. No fines will be assessed for quarters in which no wages were paid. Filing due dates in Virginia are:

  • April 30th
  • July 31st
  • October 31st
  • January 31st

Virginia Labor Law Poster Compliance

In addition to the Federal posters for compliance that you would need to display in a conspicuous location in your offices, these posters must also be displayed:

Voluntary, but highly encouraged posters are:

Labor compliance in Virginia is not the heaviest burden you’d deal with as an employer, multi-state or not. By staying up-to-date on the latest labor laws, you can ensure that your business is in compliance and avoid costly penalties. Unfortunately, it’s hard to find accurate and up to date information on these labor laws, and the actual Virginia Code as it’s written is very difficult to interpret. This guide will show you the way, but if you’re short on time, it won’t do you much good just to know this info. Someone still has to execute the strategic plan, taking action to audit for HR compliance and and continuously mitigate these risks.

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Cody Bess