The Virginia General Assembly has ended its 2023 legislative session, and it was a quieter year than some in the past. The new legislation that has been signed into law by Gov. Glenn Youngkin (R) and that affects employers is summarized below. All of the following laws take effect July 1.

Ban on pre-dispute nondisclosure agreements relating to sexual assault or harassment

A 2019 law prohibited employers from requiring prospective or current employees to agree, “as a condition of employment,” to any confidentiality or nondisclosure agreement that would restrict disclosure of a sexual assault. That law has now been expanded to also prohibit non-disparagement terms and to cover claims of sexual harassment as well as sexual assault.

Neither the original law nor its amended version apply to settlements of existing claims.

Similar legislation was enacted at the federal level in 2022. The Speak Out Act made unenforceable confidentiality, non-disparagement, and non-disclosure provisions of pre-dispute employment agreements that restrict disclosure of claimed sexual assault or sexual harassment.

Social Security numbers cannot be used for ID purposes

A newly enacted law, Senate Bill 1040, prohibits employers’ use of employees’ Social Security numbers or any derivative as employee identification numbers, or on an employee identification or access card, badge, or the like. The law appears to have no private right of action. Instead, the law will be enforced by the Commissioner of the Virginia Department of Labor and Industry. Employers may be subject to civil penalties of up to $100 per violation. The law also authorizes the Commissioner to seek injunctive relief for the law’s enforcement.

Leave for organ and bone marrow donors

Senate Bill 1086 requires certain employers to offer at least 60 business days of unpaid leave to eligible employees who donate one or more body organs and at least 30 business days of unpaid leave to employees who donate bone marrow.

The law applies to employers with 50 or more employees. It is unclear whether employees outside of Virginia are included in computing the 50-employee total.

To be eligible, (1) the employee has been employed by the employer for at least 12 months, and (2) the employee must have worked at least 1,250 hours for the employer in the previous 12 months. In addition, a physician must provide documentation that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation.

Use of the leave cannot run concurrently with leave under the Family and Medical Leave Act. It also may not be considered a break in service for purposes of other employment benefits, such as salary adjustments, other types of leave, vacation, seniority, or other employee benefits. During the leave, the employer must continue to provide health and medical insurance coverage and pay any earned commissions due from work performed before the leave. Employers must restore employees returning from the leave to the same position that the employees held when the leave began, or to an equivalent position. There is an exception to the job restoration requirement if the employee has an intervening health condition unrelated to the condition that required the organ or bone marrow donation.

Retaliation based on the employee’s request for leave, taking leave, or alleging a violation of the leave law, is prohibited. The Virginia Department of Labor and Industry enforces the law, and there apparently is no private right of action. An employee may file a complaint with the Department, which may then initiate a mediation and resolution process. The Department may also assess a civil penalty up to $1,000 for a first “knowing” violation, up to $2,500 for a second violation, and up to $5,000 for each additional violation.

Subpoena power for Virginia Employment Commission

House Bill 2010 amends the Virginia Employment Commission statute to authorize Commission attorneys to issue subpoenas to compel the attendance of witnesses or the production of documents necessary in investigations or adjudications under Virginia’s Unemployment Compensation Act. A party in the proceeding before the Commission may file a motion in Virginia circuit court to quash the subpoena before the date of production required by the subpoena.

Phase-out of subminimum wage

House Bill 1924 amends the Virginia Minimum Wage Act to limit the use of the subminimum wage under an exemption that is comparable to Section 14(c) of the federal Fair Labor Standards Act. The federal law authorizes the U.S. Department of Labor to issue permits for the employment of employees with disabilities at a rate below the minimum wage. Effective July 1, the subminimum wage may be paid only to Virginia employees who were paid a subminimum wage by a federal Section 14(c) certificate holder before that date (July 1). Those employees may continue to be paid the subminimum wage through July 1, 2030.

Effective July 1, 2030, the provision of the Virginia law permitting the subminimum wage under the certificates will sunset.

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