#virginialaw

Virginia Passes Law Defining Racial Discrimination to Include Hairstyles, Other Historic Traits

by Kristina Vaquera and Milena Radovic
Jackson Lewis PC.   

Virginia has become the fourth state (joining California, New Jersey, and New York) to define racial discrimination to include traits historically associated with race, such as hairstyles. The new Virginia law will go into effect on July 1, 2020.

On March 4, 2020, Governor Ralph Northam signed an amendment to the Virginia Human Rights Act, Virginia Code Section 2.2-3901. While the Virginia Human Rights Act defines “because of sex or gender” or “on the basis of sex or gender,” Section 2.2-3901 failed to define or elaborate on the meaning of “the basis of race.” The new law (SB 50) provides:

The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists. 

Significantly, while the new law specifically references hairstyle discrimination, it prohibits discrimination on the basis of race with regards to any traits historically associated with race.

With this change in the law, employers should review their employee handbooks, policies, and training for compliance. Employers should pay particular attention to anti-discrimination and anti-harassment policies, as well as grooming and appearance policies. Employers should review their accommodation policies based on religious or cultural beliefs for compliance with the new law.

In addition, employers should update their supervisory training to take into account the new law as part of any anti-discrimination and anti-harassment training.

Posted by Kim Breeding in Law

Virginia Department of Labor and Industry’s Update on Virginia Wage Payment Statements

by Kristina Vaquera and Milena Radovic
Jackson Lewis PC.   

In 2019, the Virginia General Assembly amended Virginia Code § 40.1-29 to require employers to provide employees with a written statement, by paystub or online accounting, showing the following:

1.       The name and address of the employer;

2.       The number of hours worked during the pay period;

3.       The rate of pay;

4.       The gross wages earned by the employee during the pay period; and

5.       The amount and purpose of any deductions.

The law took effect on January 1, 2020. At the time the bill was passed, many employers wondered whether it would apply to exempt employees as well non-exempt employees as the Code section failed to distinguish between the two. On November 5, 2019, Virginia Department of Labor and Industry issued an announcement explaining that the law applies to all employees, even those who are not paid on an hourly basis, such as salaried and piece work employees.  In the announcement, Virginia DOLI stated that for salaried, piece work employees, and others who are not traditionally paid on an hourly basis, it would not take any steps to enforce the requirement for those until July 1, 2020, and explained that the delay in the enforcement of this policy applies only to the hours of work requirement and does not apply to any other provisions of §40.1-29.

As noted in our previous article, employers affected by the new law should review and update their payroll practices to ensure compliance. They also should review and revise any employee handbook policies dealing with wage statements or timekeeping.

Posted by Kim Breeding in Law

Are General Contractors Liable for Their Subcontractors’ Actions or Inactions?

by Kristina Vaquera, Esq.
Jackson Lewis P.C.

A general contractor in Southern California found itself on the hook for its subcontractor’s failure to pay wages to its workers, even though the general contractor had no knowledge of it. The case illustrates an important reminder for general contractors. The general contractor was fined close to $600,000 under a 2017 California law, A.B. 1701, which holds general contractors liable for their subcontractor’s failure to pay wages owed to workers.

Holding a general contractor responsible is not new or limited to state law. Under most federal employment laws, a general contractor could be found to be a joint employer with its subcontractor, or a temporary staffing agency, when certain conditions are met. In determining if the general contractor is jointly employing workers with its subcontractors, courts will look at the level of control exercised by the general contractor over these workers, as well as intermingling of operations, common ownership, supervision of work, pooling of employees, sharing of clients or customers, and agreements between the companies.

Unexpected and significant consequences for a general contractor may result from its subcontractor’s noncompliance with the law. For example, under the Fair Labor Standards Act, a general contractor found to be a joint employer could be liable for a subcontractor’s failing to pay wages or overtime and misclassifying a worker as exempt or as an independent contractor, among other things.

In addition, more and more courts are looking at whether general contractors should be held accountable for a subcontractor’s alleged harassing or discriminatory conduct under Title VII of the Civil Rights Act.

State and federal agencies and workers may go after a general contractor for joint-employment liability when the subcontractor cannot cover the liability on its own or it is no longer operating, and the general contractor has deeper pockets.

Accordingly, to reduce risk, general contractors should consider carefully who they choose to do business with and take steps to ensure that their business partners are compliant with federal and state laws.

If you have any questions, please contact Kristina Vaquera, 757.648.1448;
kristina.vaquera@jacksonlewis.com .

Posted by Kim Breeding in Law

Change to Virginia Wage Payment Statements on the Horizon

by Kristina Vaquera, Esq. and Milena Radovic, Esq.
Jackson Lewis P.C.

Beginning January 1, 2020, employers in Virginia must provide paystubs to employees on “each regular pay date.”

Currently, Virginia employers must provide only a written statement reflecting the employee’s gross wages and deductions upon the employee’s request.

New Requirements

Virginia Code § 40.1-29 has been amended to require employers to provide employees with a written statement, by paystub or online accounting, showing the following:

  1. The name and address of the employer;
  2. The number of hours worked during the pay period;
  3. The rate of pay;
  4. The gross wages earned by the employee during the pay period; and
  5. The amount and purpose of any deductions.

Employers Covered

The new law applies to an employer, including any individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy, doing business in or operating within Virginia who employs another to work for wages, salaries, or on commission, as well as any similar entity acting directly or indirectly in the interest of an employer in relation to an employee.

Excluded from the new law are employers engaged in agricultural employment, including agribusiness and forestry. These employers must produce only wage statements reflecting gross wages earned and the amount and purpose of any deductions upon an employee’s request.

Employees Covered

Virginia Code § 40.1-29 does not distinguish between exempt and non-exempt employees. Rather, it applies to all employees, defined by Virginia Code § 40.1-2 as any person who, in consideration of wages, salaries, or commissions, may be permitted, required, or directed by any employer to engage in any employment directly or indirectly.

Therefore, employers must provide wage statements to exempt employees, as well as non-exempt employees.

Penalties

The penalties provision of the statute does not expressly address whether it applies to a failure to provide the required wage statement. However, it is so broadly worded that it may be interpreted to allow a complainant to file a complaint with the Attorney General for a violation of the amendment, and the Attorney General may investigate the complaint.

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Employers affected by the new law should review and update their payroll practices to ensure compliance. They also should review and revise any employee handbook policies dealing with wage statements or timekeeping.

If you have any questions, please contact Kristina Vaquera, 757.648.1448, kristina.vaquera@jacksonlewis.com; or Milena Radovic, 757.648.1444, milena.radovic@jacksonlewis.com, with Jackson Lewis, P.C.

Posted by Kim Breeding in Law

Virginia Employers Required to Provide Copies of Employment Records Upon Written Request

by Kristina Vaquera, Esq. and Milena Radovic, Esq.
Jackson Lewis P.C.

On July 1, 2019, a new amendment to Virginia Code Section 8.01-413.1 will take effect. For the first time, all Virginia employers will be required to provide copies of employment records to employees upon written request. Records reflecting dates of employment, wages or salary during employment, job description and job title and any inquiries sustained by the employee during employment must now be provided within 30 days of receipt of a written request from the employee, current or former, or the employee’s attorney.

If the employer keeps the records in paper or hard copy format, the employer may charge a reasonable fee per page for copying. Likewise, if the employer keeps the records in an electronic format, the employer may charge a reasonable fee for the electronic records.

If the 30-day obligation cannot be met, then the employer must provide written notice of the delay and produce the records requested within 30 days of the notice. Failure to comply can result in a subpoena being issued for the records and possible damages, including expenses such as court fees and attorney costs. 

The statute provides for one very limited exception. Specifically, an employer will not be required to produce the personnel record if there is a written statement included in the employee’s records by the employee’s treating physician or clinical psychologist that in his or her professional opinion that furnishing the records or allowing the employee to review the records would reasonably endanger the life or physical safety of the employee or another person, or that the records reference another person and access to the records would reasonably cause substantial harm to the referenced person. However, the latter provision does not include a heath care provider.

If an employee’s records contain such statements and an employee requests the record, then the employer must produce the records within 30 days of the request, but only to the employee’s attorney or authorized insurer. The employer may not furnish the records to the employee.

While the statute does not contain a specific reference to the length of time limitation such records must be kept by the employer, the amendment requires “all records or papers retained by the employer” shall be produced.  As a result, employers should review their document retention policies when preparing to comply with this change.

Employers in Virginia should also review current handbooks and policies and revise provisions that refer to employment files and records as the property of the employer as well as language that deem requests for records or files by the employee being at the employer’s sole discretion.

If you have any questions, please contact Kristina Vaquera, 757.648.1448, kristina.vaquera@jacksonlewis.com; or Milena Radovic, 757.648.1444, milena.radovic@jacksonlewis.com, with Jackson Lewis, P.C.

Posted by Kim Breeding in Law, 0 comments