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Sweeping Changes to Virginia’s Employment Laws

On July 1, 2020, the Virginia General Assembly enacted sweeping changes to Virginia’s employment laws, significantly affecting the employer-employee relationship.  These sweeping changes include but are not limited to the expansion of anti-discrimination, wage, and anti-retaliation measures.  On the whole, these measures have a central purpose in mind: to protect Virginia’s employees in a manner and to an extent Virginia law has not done so before.  As an employee, you should understand these changes, the manner in and extent to which they affect your employment, and your expanded rights moving forward.

At the outset, it is important to understand Virginia’s employment laws prior to the July 1, 2020, changes.  Let there be no doubt.  Virginia was and still is an employment at-will state.  At law, employment at-will means that an employee, absent a contract otherwise, is free to leave or resign from his or her employment at any time and for any reason or no reason at all.  Conversely, an employer is free to terminate an employee at any time and for any reason or no reason at all.  In contrast to the employee’s decision to leave or resign, the employer’s freedom to terminate is more limited – apart from any contract, an employer is not free to terminate an employee for a reason that violates federal or state discrimination and harassment laws or public policy.  One example of a termination that violates federal law is when an employer, who has more than 15 employees, terminates an employee not because of the employee’s performance but because of the employee’s sex, color, race, national origin, or religion.  In this example, such a termination violates Title VII of the Civil Rights Act of 1964, which is the federal law prohibiting an employer from taking an adverse employment action, including termination, against an employee because of a protected status.  See 42 U.S.C.A. § 2000e–2 (mandating that an employer may not “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”)  The balance of power in the employer-employee relationship favors the employer, requiring the law to check that imbalance.

Continuing with the anti-discrimination example above, Title VII provides an employee with a course of action to pursue relief.  Within 180 days of the discrimination in question, the employee may file a Charge of Discrimination against his or her employer with the Equal Employment Opportunity Commission (“EEOC”).  The EEOC will investigate the Charge of Discrimination and, if possible, seek to resolve it.  If the EEOC is unable to do so, then the employee may obtain from the EEOC a right-to-sue letter, permitting the employee to file a lawsuit against the employer.  An employee must file the lawsuit in state or federal court within 90 days of the right-to-sue letter.  More often than not, the employee’s lawsuit finds its way to a federal court.

Litigation in federal court, especially the Eastern District of Virginia’s “rocket docket” is sharp and swift.  Employees should know that employers tend to prefer litigation in federal court because the federal rules of civil procedure provide powerful mechanisms by which they may request the district court dismiss a lawsuit.  One such mechanism, which is not so powerfully available in state court, is the motion for summary judgment.  When a district court grants an employer’s motion for summary judgment, that means the lawsuit does not reach a jury which may be opposed or sympathetic to the power imbalance.  The summary judgment dismissal of an employment discrimination lawsuit presents a real and reasonable risk for an employee.  But, should a Title VII employee survive such motion and prevail at trial, then he or she may be entitled to an award of compensatory damages (capped at $300,000), punitive damages, back and front pay, equitable remedies, including reinstatement, and reasonable attorney fees and costs.

Prior to July 1, 2020, Virginia law did not have any anti-discrimination laws with the teeth of Title VII.  Virginia anti-discrimination law was limited to the Virginia Human Rights Act (“VHRA”).  Va. Code § 2.2-3900, et seq.  A stated purpose of the VHRA was to “safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of . . . employment.”  Va. Code 2.2-3900(B)(1) (alteration added).  In this context, the VHRA provided that “conduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability shall be an ‘unlawful discriminatory practice.’”  Va. Code § 2.2-3901.  The VHRA specifically mandated that “[n]o employer employing more than five but less than 15 persons shall discharge any such employee on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, including lactation”, and “[n]o employer employing more than five but less than 20 persons shall discharge any such employee on the basis of age if the employee is 40 years of age or older.”  Va. Code § 2.2-3903 (repealed).  Unlike the broad relief under Title VII, the VHRA permitted an employee to file a lawsuit only when the employee was discharged or terminated from employment and then limited the relief to 12 months of back pay and attorney fees of no more than 25% of that back pay.  Id.  The VHRA did not permit an employee to obtaining more appropriate and significant forms of relief, including compensatory and punitive damages and reinstatement.  Id.

On July 1, 2020, the General Assembly amended the VHRA, and the Virginia Values Act (“VVA”) became effective.  See Va. Code § 2.2-3904, et seq.  With respect to employment, the VVA broadly expanded an employee’s rights.  No longer is an employer’s legally actionable conduct limited to a discharge or termination.  No longer is an employer limited to persons or entities employing between 5 and 15 employees.  Rather, more consistent with Title VII, the VVA now mandates, for example, that an “employer” generally includes a person or entity who employs 15 or more employees.  It also mandates that “[i]t is an unlawful employment practice for . . . [a]n employer to . . . fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to such individual’s compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran, or national origin.”  Va. Code § 2.2-3905(B)(1)(a). In addition to forbidding discrimination in the “compensation, terms, conditions, or privileges of employment,” the VVA now protects sexual orientation, gender identity, lactation (providing for specific accommodations), and veteran statuses.  The VVA also permits an aggrieved employee to file a lawsuit in state court for compensatory damages (not capped at $300,000), punitive damages, reasonable attorney fees (not capped at 25% of the back pay award), costs, injunctions, restraining orders, and other affirmative actions.  Critically, the powerful mechanism of summary judgment, which employers prefer in federal court, is strongly disfavored in Virginia court.  As one Virginia circuit court recently observed, “the Supreme Court of Virginia has indicated repeatedly that summary judgment is considered a drastic remedy and is strongly disfavored.”  Acres v. Serco, Inc., 102 Va. Cir. 66 (Fairfax C. Ct., Apr. 11, 2019) (emphasis added) (denying motions for summary judgment) (citing Smith v. Smith, 254 Va. 99 (1997)).  In the context of anti-discrimination laws, the VVA has dramatically changed the landscape for employees, placed restrictions on a larger segment of employers, and provided a valuable new alternative to consider.

The anti-discrimination example above is illustrative and not intended to be exhaustive of the employment law changes.  On July 1, 2020, an employee’s rights in Virginia expanded in many other ways.  For example, Virginia law now permits an employee to file a lawsuit against his or her employer for the employer’s failure to pay wages and, for knowing failures, seek treble damages and reasonable attorney fees.  See Va. Code § 40.1-29(j).  As another example, Virginia law now broadly mandates that “[a]n employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment,” because the employee, among other things, “in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official,” “[r]efuses to engage in a criminal act that would subject the employee to criminal liability,” or “[r]efuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason.”  Va. Code § 40.1-27.3.  Finally, Virginia law affords an employee a new right to file a lawsuit against his or her employer when the employer knowingly misclassifies the employee as an independent contractor.  Va. Code § 40.1-28.7:7(A).  These additional examples are further illustrative of the sweeping changes in Virginia law which have the potential to affect your employment environment.

As an employee, you should understand the recent changes to Virginia’s employment laws, the manner in and extent to which they affect you, and your expanded rights moving forward.  At Simopoulos Law, we focus on employment law and can assist you navigate these new and complex waters so you can make the decisions which are right for you.  If you need assistance with an employment matter, please contact us.  We make your rights our mission.

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