Sweeping changes in Virginia Employment Law
The Virginia General Assembly has overhauled Virginia’s employment laws, giving providing major protections for employees and creating increased liability exposure for employers. Virginia has joined 20 other states and Washington D.C. in expressly prohibiting discrimination based upon sexual orientation and gender identity, and has passed the Virginia Values Act, which now allows employees to sue employers for unlimited economic and compensatory damages, and to obtain punitive damages to $350,000.00, as well as attorneys fees and costs of the litigation.
The Virginia Values Act also establishes as “Division of Human Rights”, which is empowered to prevent employer discriminatory practices and to provide relief to employees who have been the victims of such practices. The “Division of Human Rights” is empowered to investigate, hold hearings and render decisions concerning complaints of discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, sexual orientation or status as a veteran.
Moreover, the Virginia Values Act states that its discrimination policies are to be construed liberally for the accomplishment of its policies, and to prevent conduct that violates any Virginia or federal statute as it relates to a minority class is to be considered an unlawful discriminatory practice. If an employer relies upon race, color, religion, sex, sexual orientation, gender identity, Maria status, pregnancy, childbirth or related medical conditions, age, status as a veteran, or national origin as a “motivating factor” for any employment practice, even if other factors also motivate the employment decision.
Unlawful Discrimination.
If an employee claims to haves experienced an unlawful employment practice Virginia now requires the charge to be filed with the Division of Human Rights, which now will function much like the Equal Opportunity Employment Commission (EEOC). The Human Rights Division is required to investigate any charges filed, and will issue a report stating whether or not there is reasonable cause to believe that discrimination has occurred. Employees may also bypass the Division of Human Rights and proceed directly to file a lawsuit if 180 days has passed form the date of the complaint or the Human Rights Division determines that it will be unable to complete its investigation in 180 days after the complaint was filed.
Whistleblower and Retaliatory Discharge Protection.
Virginia now has a statute that protects employees from discharge by their employer for reporting in good faith any violations federal or state law to a supervisor or any governmental body or law-enforcement official. Employees are also protected if they are required to participate in an investigation or engage in any action that violates any federal or state law regulation.
An employee who experiences retaliatory action or engages in whistleblower activity may file suit against the employer within one year from the date of the act, and is entitled to reinstatement and compensation for lost wages and benefits, plus interest, as well as attorney’s fees and court costs.
Wrongfully Withheld Wages
Employees who have wages wrongfully withheld by their employer (now often referred to as wage theft) used to have to file a complaint with the Department of Labor and Industry that would then investigate the employee compliant. Employees could not sue an employer for lost wages. Now, employees have the right to sue the employer for wage theft, and Virginia prohibits retaliation against employees who disclose wage theft or other violations of wage laws. Employees that successfully prove wage theft are entitled to their unpaid wages, plus interest, damages in an amount equal to the wages lost and reasonable attorneys fees and court costs. If the employee can prove that the employer’s conduct was intentional, the employee is entitled to treble damages.
What the new law means to you:
If you are an employee, the protections in the workplace have increased dramatically and Virginia’s statutes now have damages and penalties provisions that will encourage employees who are subjected to unlawful employer activities to pursue their claims. Employers will have an incentive to be make sure they are in compliance with the new laws or face expensive and costly litigation.
If you are an employer, it means that your business needs to insure that management and supervisors are properly trained and are particularly aware of the standards of conduct now required under the new legislation. The days of lawyers advising employers on the basis of “risk assessment” (i.e., the cost of liability if an unlawful practice continues) are over. Even minor violations of the Virginia statutes can lead to expensive problems, and investigations conducted by the Division of Human Rights will require that the employer know how to provide an appropriate response. Because the Division of Human Rights can also conduct mediation of an employment dispute, employers and employees will need to know when mediation is a worthwhile endeavor and when it is not.
Virginia’s new legislation, while new to Virginia, is nothing new to the Loeschen Law Firm. The state of Iowa passed similar state statutes several years ago. As a licensed, Iowa employment law attorney, John Loeschen has handled the same issues for employers and employees in Iowa for almost 30 years. As a new wave of employment law breaks in Virginia, few, if any, Virginia attorneys have the same degree of experience as the Loeschen Law Firm.