Labor and Employment Law Overview: Virginia
Federal law and guidance on this subject should be reviewed together with this section.
- State law prohibits employers from taking certain actions with regard to genetic testing. See Preemployment Screening and Testing; Unlawful Discrimination.
- Virginia law does not have a blanket prohibition on employers' use of lie detector tests, but prohibits employers from asking certain questions. See Preemployment Screening and Testing.
- Virginia's antidiscrimination law prohibits employers from discriminating against employees based on a variety of factors. See Unlawful Discrimination.
- Employers may deduct from employees' wages only under limited circumstances. See Employee Compensation.
- Certain employees, but not all, are entitled to break periods. See Hours Worked: Meal and Rest Periods.
- State law requires certain employers to allow employees to take leaves of absence in addition to those required by federal law. See Leaves of Absence.
- State law imposes certain requirements for employers providing job references. See Termination of Employment.
- Some Virginia employers must offer continued health care coverage to employees who would otherwise lose coverage. See Termination of Employment.
Interplay Between State and Federal Law
Employers are responsible for complying with both state and federal executive orders, statutes, regulations and other legal requirements. Often, state and federal legal requirements will address the same subject matter and impose varying compliance obligations on the employer. For instance, federal law may impose a higher minimum wage rate than state law. Alternatively, state law may require employers to retain certain records for a longer time period than federal law.
Unfortunately, employers cannot select which law they want to comply with. Instead, employers covered under both state and federal law must comply with both. As a general rule of thumb, complying with the law that offers the greatest possible rights or benefits to the employee will ensure the employer meets its compliance obligations.
Key Virginia Employment Laws
Virginia has key employment laws affecting the employer-employee relationship. Below, HR professionals will find an overview of these laws.
Preemployment Screening and Testing
Employers may not require applicants to disclose information concerning expunged arrest or conviction records or arrests that did not lead to conviction. +Va. Code Ann. § 19.2-392.4. For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia. Employers may consider certain convictions directly impacting an employee's or applicant's suitability for a particular position.
Public employers must be enrolled in E-Verify by December 1, 2012 and, starting on the same date, must use E-Verify for all newly hired employees. +Va. Code Ann. § 40.1-11.2. For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia.
Employers may not solicit, administer or require genetic testing as a condition of employment. +Va. Code Ann. § 40.1-28.7. For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia.
Lie Detector Tests
Virginia law does not have a blanket prohibition on employers' use of lie detector tests, but prohibits employers from asking certain questions. For example, employers may not inquire about an applicant's sexual activities during a polygraph examination, unless the prospective employee's sexual activity resulted in a conviction. +Va. Code Ann. § 40.1-51.4.
Employers are required to either destroy the results of polygraph examinations or to maintain them in confidence. Results may not be disclosed to third parties without an examinee's permission. For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia.
Medical Exam Fee
Where a medical examination is required as a condition for employment (or continued employment) state law prohibits employers from requiring employees or applicants to pay for the examination. For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia.
Division on Human Rights
The Division on Human Rights in part of Virginia's Office of the Attorney General and is the primary civil rights agency in the state. Among its responsibilities, the Division enforces the state's antidiscrimination policies and administers the Virginia Human Rights Act, which prohibits discrimination in employment. Prior to July 1, 2012, these functions were handled by Virginia's Human Rights Council.
The Virginia Human Rights Act (VHRA) mirrors federal antidiscrimination laws and prohibits discrimination in employment on the basis of the following:
- National origin;
- Childbirth or related medical conditions, including lactation;
- Age (age 40 years and older); and
Lactation means a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast.
All employers must comply with the VHRA. However, only employees working for employers with more than five, but less than 15 employees have a private right of action against their employer. For more information, see:
Disability Discrimination - Reasonable Accommodations
Like federal law, in certain circumstances, employers are required to provide reasonable accommodations to disabled employees. Under state law, the employer has the right to choose among equally effective accommodations, and any accommodation that would cost more than $500 is, arguably, presumed to impose an undue burden on employers with less than 50 employees. For more information, see Employee Management > EEO - Discrimination: Virginia. However, employers covered under the federal Americans with Disabilities Act (ADA), as amended must comply with the ADA in terms of whether and how reasonable accommodations are provided.
Wage Discrimination Between Sexes
State law prohibits discrimination in pay between the sexes. +Va. Code Ann. § 40.1-28.6. The law does not prohibit pay differentials based on legitimate nondiscriminatory factors (e.g., seniority, merit system, etc.). For more information, see Employee Management > EEO - Discrimination: Virginia.
Under a Virginia law, no employer may do the following with regard to genetic testing:
- Request, require, solicit or administer a genetic test as a condition of employment or of continued employment; or
- Take adverse employment actions (e.g., refuse to hire an applicant, refuse to promote or terminate an employee, etc.).
For more information, see Recruiting and Hiring > Preemployment Screening and Testing: Virginia.
State law requires employers to pay employees a certain number of times each month:
- Hourly employees must be paid at least once every two weeks or twice a month; and
- Salaried employees must be paid at least once each month.
Those requirements do not apply to executive personnel.
It is a violation of the law not to pay all wages due on the established payday. For more information, see Payroll > Payment of Wages: Virginia.
Under the Virginia Minimum Wage Act, +Va. Code Ann. § 40.1-28.10; +Va. Code Ann. § 40.1-28.11; +Va. Code Ann. § 40.1-28.12, the state minimum wage rate is $7.25 per hour. However, Virginia law recognizes certain exemptions. For more information, see Employee Compensation > Minimum Wage: Virginia.
Under federal law, employers generally must pay nonexempt employees at one-and-one-half their regular hourly rate for all hours over 40 hours in a workweek.
Virginia law prohibits employers from making deductions without, first,securing the employee's written authorization to do so, except for deductions for the following:
- Taxes; or
- Other items required by law (e.g., garnishments).
Even with written permission, employees cannot be required to forfeit their wages for the following:
- Errors; or
For more information, see Payroll > Involuntary and Voluntary Pay Deductions: Virginia.
Hours Worked: Meal and Rest Periods
An employer does not have to provide employees breaks or a meal period unless the employee is under age 16.
For employees under age 16, employers also must do the following:
- Comply with hours of work restrictions; and
- Keep records to verify hours worked and any break periods.
Leaves of Absence
Bone Marrow and Organ Donor Leave
Full-time state employees are entitled to up to 30 days of paid leave in each calendar year to serve as bone marrow or organ donors. Bone Marrow and Organ Donor Leave may be taken in addition to other paid leave to which the employee may be entitled. +Va. Code Ann. § 2.2-2821.1. For more information, see Employee Leaves > Other Leaves: Virginia.
Upon reasonable notice to the employer, employees may miss work to serve as an election officer. Employers are prohibited from requiring employees to use sick leave or vacation time for such service.
An employee who serves as an election officer for four or more hours may not be required to start a work shift after 5:00 p.m. the following day, or before 3:00 a.m. the following day. For more information, see Employee Leaves > Other Leaves: Virginia.
Jury Duty and Court Appearances
Virginia law provides protection to the following individuals:
- Any person who is summoned to serve on jury duty;
- Any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in court; or
- Any person who, having appeared, is required in writing by the court to appear again.
After the employer receives reasonable notice of an employee's court appearance or summons, the employer may not take adverse employment action against the employee based upon the court appearance or summons. Employers are also prohibited from requiring employees to use sick leave or vacation time during their absence from work.
No person who is summoned and appears for jury duty for four or more hours, including travel time, in one day may be required to start any work shift that begins as follows:
- On or after 5 p.m. on the day of the jury duty appearance; or
- Before 3 a.m. on the day following the day of the jury duty appearance.
For more information on this topic, see Employee Leaves > Jury Duty: Virginia.
Virginia law provides certain protections to members of the following:
- Virginia National Guard;
- Virginia Defense Force; and
- Naval militia.
Members who perform, have performed, apply to perform or have an obligation to perform state active duty or military duty may not be discriminated against on the basis of their:
- Application for membership;
- Performance of service;
- Application for service; or
Specifically, members may not be denied the following:
- Initial employment;
- Retention in employment;
- Promotion; or
- Any benefit of employment.
Members called to state active duty or military duty have certain rights:
- They may take leave without pay from their nongovernmental employment.
- They may not be forced to use or exhaust their vacation or other accrued leaves from their nongovernmental employment for a period of active service.
For more information, see Employee Leaves > USERRA: Virginia.
Workplace Safety (OSHA)
Virginia is a state that operates an approved state OSH plan covering the private sector. For more information, see Risk Management-Health, Safety, Security > Workplace Safety: Virginia.
Termination of Employment
Final wages must be paid on or before the next regular payday on which an employee would have been paid if the employee had remained employed. Whether departing employees are entitled to receive vacation pay depends on the employer's written policies or any applicable collective bargaining agreement (CBA). If the employer's policies or the CBA is silent on the issue, the employer is not required to include vacation pay in employees' final paychecks. For more information, see Payroll > Payment of Wages: Virginia.
Virginia law makes it a misdemeanor for an employer to willfully and with bad intentions prevent, or attempt to prevent, a former employee from obtaining employment elsewhere. +Va. Code Ann. § 40.1-27.
The law does not prohibit employers from giving a truthful statement about:
- The reason for an individual's discharge; or
- The character, industry and ability of the person who has voluntarily left.
Continuation of Health Care Coverage
Employers with 20 or more employees must comply with the federal Consolidated Omnibus Budget Reconciliation Act (COBRA). COBRA requires covered employers to provide continued health care coverage, under employers' group plans, to employees experiencing qualifying events that would otherwise result in a loss of coverage. Certain states, such as Virginia, have mini-COBRA laws that apply to employers with less than 20 employees. Virginia's mini-COBRA law allows eligible employees to elect continued coverage for up to 12 months. For more information, see Employee Benefits > Health Care Continuation (COBRA): Virginia.
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