Amid my best attempts to combat the winter doldrums and decide which day should be the final cutoff for saying, “Happy New Year,” I’ve reviewed the proposed bills introduced in the 2019 Virginia General Assembly Session that would affect employers. Here is a summary of four bills, which I thought would be of interest:
House Bill 1687 seeks to amend the Virginia Wage Payment Act, codified as Virginia Code § 40.1-29, by providing for a private cause of action to employees. Currently under this statute, only the Department of Labor and Industry (DOLI) or its designees may pursue actions against employers on behalf of an employee. The proposed measures would include recovery of wages, plus interest at 8% from the date the wages were due, and potentially attorney’s fees and treble damages.
This bill may pass given the limited resources of DOLI and would provide a powerful weapon to employees.
This bill was assigned to the House Courts Subcommittee No. 2. Delegate Ronnie Campbell has proposed HB2524, which is substantially similar to HB 1687.
House Bill 1713 proposes the creation of a new statute, to be codified as Virginia Code § 40.1-27.3, that would create a generalized anti-retaliation protection to an employee who (1) in good faith report violations of state or federal laws or regulations to any government body or law enforcement; (2) is requested by a governmental body or law enforcement to participate in an investigation, hearing, or inquiry; (3) refuses to engage in criminal conduct that would subject him or her to criminal liability, (4) refuses an order of an employer to do something that the employee, with an objective basis in fact, believes violates a state or federal law or regulation after advising the employer of the same, or (5) provides information or testifies before a governmental body or law enforcement conducting an investigation or hearing or an inquiry into violations by the employer of a state or federal law or regulation.
This bill has been referred to the House Committee on Commerce and Labor. As this statute would abrogate Virginia’s cherished “at will” employment doctrine and expand the narrow exceptions for wrongful discharge claims, this bill is unlikely to gain traction.
This bill was assigned to the House Courts Subcommittee No. 2.
House Bill 1792 proposes a statute, to be codified as Virginia Code § 40.1-28.7:7, that would prohibit employers from entering into covenants not to compete with low wage employees. The definition of “low wage employee” is a person whose weekly earnings are less than the average weekly earnings set forth in Virginia Code § 65.2-500(B). The statute would not render such current non-compete agreements unenforceable, only those that parties attempt to enter into after July 1, 2019.
HB1792 has been referred to the House Committee on Commerce and Labor, which assigned it to the House Commerce and Labor Subcommittee No. 1.
This statute would likely gain support with respect to such lower level employees, especially since there are other, more effective ways for employers to protect their legitimate business interests from departing employees: for instance, confidentiality agreements, agreements prohibiting the solicitation of customers, and statutory weapons, like the Virginia Computer Crimes Act or the Virginia Trade Secrets Act.
House Bill 1862 proposes to create a statute, to be codified as Virginia Code § 40.1-28.6:1, which would require both private employers, and the Commonwealth and its political subdivisions, to provide unpaid break time to a woman who needs to express breast milk for her nursing child for one year after the birth of that child. The bill also requires employers to make reasonable efforts to provide an area (other than a bathroom) to allow nursing mothers to express breast milk in privacy. Though HB1862 largely mirrors the similar protections afforded by the Fair Labor Standards Act to nonexempt employees; this bill requires employers to provide such a benefit to exempt employees.
This bill was referred to the House Committee on Commerce and Labor, which assigned it to the House Commerce and Labor Subcommittee No. 1.
House Bill 2261 proposes to create Article 2.1 to Chapter 3 of Title 40.1, entitled Paid Medical and Family Leave Act, to be codified as Code § 40.1-33.1-33.11. This statutory scheme would apply to private employers who employee 15 or more employees (as opposed to the federal Family Medical Leave Act (FMLA) that covers employers with 50 or more employees). Employers would need to award 0.46 hours of leave per 40 hours worked up to a maximum of 24 hours in a 12-month period. Employees would be able to use such leave in hour increments for those same purposes set forth in the FMLA.
This bill is not likely to pass in its present form. It was referred to the House Committee on Commerce and Labor, which assigned it to the House Commerce and Labor Subcommittee No. 1.
Not surprisingly, there are also four bills that would raise the minimum wage. Lots of things can change with these bills during this “short session.” We will see what happens by late February.
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