Virginia employment law overview

Virginia has laws that provide greater protections to employees than federal law, including broader antidiscrimination coverage and health care continuation coverage obligations for smaller employers, but generally follows federal law with respect to topics such as the minimum wage and occupational safety.

Select Virginia employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, diversity and employee relations

Key Virginia requirements impacting EEO, diversity and employee relations are:

Fair employment practices

The Virginia Human Rights Act (VHRA) prohibits discrimination in employment based on factors such as:

• Age (40 years and older).
• Color.
• Disability.
• Gender identity.
• Marital status.
• National origin.
• Race (including hair texture, hair type, protective hairstyles and other traits historically associated with race).
• Religion.
• Sex (including pregnancy, childbirth or related medical conditions, such as lactation).
• Sexual orientation.
• Military status as veteran.

The VHRA generally defines an employer as one that employs 15 or more employees. However, the VHRA requires employers with six or more employees to provide reasonable accommodations for individuals with a disability unless the accommodation would impose an undue hardship.

For unlawful discharge claims based on race, color, religion, national origin, veteran status, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions (including lactation), an employer is defined as any employer employing more than five persons. For unlawful discharge claims based on age, employer means any employer employing more than five but fewer than 20 persons.

In addition to the VHRA, the Virginians with Disabilities Act (VDA) prohibits employers from discriminating against qualified individuals solely because of their disabilities. All employers are covered regardless of size, except those subject to the federal Rehabilitation Act. The VDA protects individuals who have a physical or mental impairment that substantially limits a major life activity or who have a record of such impairment. It does not protect individuals who are merely perceived as having an impairment.

The VDA requires an employer to provide reasonable accommodations to qualified individuals with disabilities. An accommodation is not reasonable if it would create an undue burden on the employer. In Virginia, there is a rebuttable presumption that any accommodation that costs more than $500 would impose an undue burden on an employer with fewer than 50 employees.

Equal pay

Virginia requires employers to pay men and women equally for work that requires equal skill, effort and responsibility and that is performed under similar working conditions.

The law does not prohibit pay differentials based on legitimate nondiscriminatory factors, such as a seniority or merit system.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Pregnancy accommodation

The VHRA requires an employer with five or more employees to provide reasonable accommodations to employees for pregnancy, childbirth, or a related condition (including lactation), unless doing so would impose an undue hardship on the employer.

Reasonable accommodations may include:

• More frequent or longer bathroom breaks.
• Breaks to express breast milk.
• Access to a private location other than a bathroom for the expression of breast milk.
• Acquisition or modification of equipment or employee seating.
• A temporary transfer to a less strenuous or hazardous position.
• Assistance with manual labor.
• Job restructuring.
• A modified work schedule.
• Light duty assignments.
• Leave to recover from childbirth.

Recruiting and hiring

A Virginia employer may ask job applicants about their criminal conviction histories, but generally may not obtain records directly. Rather, the applicant should request the information and provide it to the employer. An employer may not require applicants to disclose information about arrests or criminal charges that did not result in convictions or about criminal records that have been sealed or expunged.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Wage and hour

Key Virginia requirements impacting wages and hours are:

Minimum wage

A Virginia employer must pay employees at least $12.41 per hour. Every January 1, the Virginia minimum wage will be adjusted for inflation.

An employer may claim a credit for tips received by employees. The employer generally determines the amount of tips.

Overtime

The Virginia Overtime Wage Act requires covered employers to compensate nonexempt employees (who include most, but not all, of those exempt under federal law) at a rate not less than one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours in any one workweek.

There are separate approaches to calculating the regular rate – one for employees paid on an hourly basis, and another for employees paid on a salary or other regular basis.

Child labor

Child labor laws in Virginia restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

In general, state law prohibits employing minors:

• In occupations that expose them to a recognized hazard capable of causing serious physical harm or death.
• As a performer in or subject of sexually explicit visual material.
• In situations in which their life, health or morals may be endangered, or where they are overworked, tortured, tormented, mutilated, beaten or cruelly treated.

Minors under the age of 18 are prohibited from working in a variety of other occupations, including but not limited to:

• Mine, quarry, tunnel or underground scaffolding work.
• Occupations involving exposure to radioactive substances or to ionizing radiations including X-ray equipment.
• Place where goods of alcoholic content are manufactured, bottled or sold for consumption on the premises, with exceptions.

Minors under the age of 16 are restricted from working in additional occupations.

Generally, minors under the age of 16 may not work:

• During school hours, except in a school work-training program.
• More than 40 hours in any week when school is not in session.
• More than 18 hours in any week when school is in session.
• More than eight hours on any day when school is not in session.
• More than three hours on any day when school is in session.
• Before 7:00 a.m. or after 7:00 p.m. (after 9:00 p.m. from June 1 through Labor Day).

Minors who work for more than five continuous hours must be given a lunch period of at least 30 minutes.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Pay and benefits

Key Virginia requirements impacting pay and benefits are:

Payment of wages

Employees may be paid in cash, or by check payable in cash at face value upon demand. An employer is permitted to pay wages by direct deposit or electronic paycard under certain circumstances.

Pay frequency

Virginia employers are required to establish regular pay periods for all employees. Salaried employees must be paid at least once per month. Hourly employees must be paid at least every two weeks or twice per month, with certain exceptions.

The requirements do not apply to employees classified as executives under the federal Fair Labor Standards Act.

Pay statements

Upon an employee’s request, an employer must provide a written statement of gross wages earned during a pay period and the amount and purpose of any deductions.

Wage deductions

An employer may not make wage deductions without the employee’s written and signed authorization, except for payroll taxes or as otherwise required by law, such as garnishments.

An employer also generally may not condition employment or continued employment on employees signing agreements providing for the forfeiture of wages.

Health care continuation

The Virginia health care continuation coverage law requires employers with fewer than 20 employees to provide up to 12 months of continued group health care coverage upon termination of an employee’s or member’s eligibility for coverage, prior to the individual becoming eligible for Medicare or Medicaid benefits.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Time off and leaves of absence

Virginia has several laws relating to required time off and leaves of absence for employees, which cover all employers. These laws include:

• Jury duty leave.
• Court appearance leave.
• Election official leave.
• Military leave.
• Civil Air Patrol leave.
• Crime victim leave.
• Organ and bone marrow donor leave.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Health and safety

Key Virginia requirements impacting health and safety are:

Occupational safety and health

The Virginia Occupational Safety and Health (VOSH) Law adopts, for the most part, the federal OSHA guidelines. It applies to all private employers except those covered by other federal safety laws.

VOSH has unique regulations covering:

• Clearances in Power Transmission and Distribution.
• Confined Space.
• Evacuation.
• Fall Protection.
• Field Sanitation.
• Overhead High Voltage.
• Reverse Signal Operation.
• Sanitation for Construction.
• Telecommunications.
• Tree Trimming Operations.
• Underground Construction Protection.

Weapons in the workplace

An employer may ban guns and weapons from the workplace, including parking lots and grounds.

Safe driving practices

Virginia prohibits a person from holding a handheld personal communications device (e.g., cell phone) while driving.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Organizational exit

Upon voluntarily or involuntarily termination of employment, an employee must be paid all wages due by the date they would have been paid had they not been terminated.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.