Virginia's 2024 Legislative Session Sees Few Employment Bills Passed And Record Vetoes

The 2024 session of the Virginia General Assembly has come to a close, and as with its 2023 session, which saw relatively little action with regard to employment legislation, there were relatively few employment-related bills enacted in 2024. Indeed, in this era of divided government in the Commonwealth, Governor Glenn Youngkin (R) used his veto pen a record 201 times, including on several pieces of employment legislation passed by the Democratic-controlled General Assembly.

This article provides a rundown of the employment-related bills that were enacted this term, which are set to take effect in less than a month, on July 1, 2024, as well as a synopsis of several high-profile bills that may be introduced again next session or in future years, after statewide elections in 2025, which may recalibrate the balance of power within the state.

Substantive and Procedural Amendments to the Virginia Human Rights Act (VHRA)

In 2020, the Virginia Values Act (VVA) significantly extended the VHRA's protections against discrimination in employment. Building upon those recent developments, the 2024 legislative sessions made both substantive and important procedural adjustments to the VHRA.

First, while the VHRA had previously included race and national origin among its list of protected traits, House Bill 18 adds "ethnic origin" to this list.

To complement this relatively modest substantive amendment to the VHRA, the General Assembly enacted two bills, which Governor Youngkin signed, aimed at providing some much-needed clarity to the administrative exhaustion requirements under that Act and which have the potential to expand the practical protections afforded by the VHRA.

Since the VVA's passage in 2020, and much like under its federal analogues in Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act, courts have overwhelmingly construed the VHRA (specifically, Sections 2.2-3907 and 2.2-3908 of the Virginia Code) to require would-be plaintiffs both to (1) file a charge of discrimination with the Virginia Office of the Attorney General's Office of Civil Rights (VOCR) and (2) receive a right-to-sue notice from the VOCR before they may bring their state law discrimination claims in court. With respect to the second requirement, however, an apparent administrative backlog with the VOCR has led to delays in the agency's issuance of right-to-sue notices (often significantly so), causing frustration among the plaintiffs' bar and creating confusion for employers, courts, and employees alike.

In an effort to lessen both this backlog and confusion, the General Assembly passed two important bills this year:

• House Bill 782 provides that individuals who want to file both a federal charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and a state charge of discrimination with the VOCR through "dual filing" may do so within 300 days of the alleged unlawful employment practice. Prior to the amendment, individuals had 300 days to file under federal law, but only 180 days under Virginia law. Thus, this new law extends the time for employees to bring discrimination charges under Virginia law in certain circumstances.

• Senate Bill 350 amends Virginia Code Sections 2.2-3907 and 2.2-3908 so that individuals who have filed a charge with the VOCR (either by filing directly with the Commonwealth or by dual filing a charge with the EEOC and VOCR) may file their VHRA claim(s) in court once 180 days have passed from the filing of the charge – even if the VOCR has not issued a right-to-sue notice. This change should reduce future backlogs with the VOCR and result in a larger number of VHRA claims proceeding to court.

Protections for Medicinal Use of Cannabis Oil Expanded to Public Employees

In 2021, Virginia legalized marijuana and provided protections for medical marijuana cardholders by prohibiting private employers from discriminating against employees for their lawful use of medical cannabis.

Senate Bill 391 amends that law by specifying that an employee's lawful medical use of cannabis oil, as defined in Section 4.1-1600 of the Virginia Code, must conform to the laws of the Commonwealth to be protected (i.e., by using cannabis oil for medical reasons pursuant to a professional practitioner's certification). The bill also expands these protections to most state and local public employees, including employees of the Commonwealth and its counties, cities, towns, and political subdivisions. These protections, however, were not extended to law-enforcement officers.

Employers are still permitted to prohibit cannabis possession during work hours. Employers also remain able to take employment actions against employees for being impaired by marijuana at work, where the employer would otherwise be committing an act in violation of federal law or a federal contract or funding, or where an applicant or employee tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test in conjunction with their employment (or prospective employment) in the defense industrial base sector (as defined by the U.S. Cybersecurity and Infrastructure Security Agency (CISA)).

Workplace Poster for Veterans Benefits and Services

On April 4, 2024, the governor signed into law House Bill 160, which directs the Department of Labor and Industry (DOLI), in consultation with the Department of Veteran Services (DVS), to create a poster describing benefits and services available to veterans.

At a minimum, the poster is required to include information about the following benefits and services:

1. Department of Veterans Services' programs, contact information, and website address;
2. Substance abuse and mental health treatment services;
3. Educational, workforce, and training resources;
4. Tax benefits;
5. Eligibility for unemployment insurance benefits under state or federal law;
6. Legal services; and
7. The U.S. Department of Veterans Affairs Veterans Crisis Line.

Displaying this poster will not be mandatory. However, doing so can simultaneously benefit employees (by making employees who are servicemembers or veterans aware of external resources available at no additional cost to employers) and employers (by demonstrating that employers take seriously veterans' assistance matters and offering circumstantial evidence that may help employers defend against claims of discrimination based on servicemember or veteran status). Employers that choose to display the poster must do so in the same location where they post other employee notices (e.g., employee intranet pages or breakrooms).

Looking Forward: Vetoed Bills that May Reappear in the Future

Perhaps just as important as the handful of new laws that were enacted this spring are the numerous high-profile bills that passed both the House of Delegates and Senate but were vetoed by the governor. It is not unusual for bills that fail to become law to be re-introduced in future legislative sessions. As such, these failed legislative efforts provide key insight into the types of laws that Virginia employers may see in the coming years – especially if there is a change in the party of the governor following Virginia's 2025 gubernatorial election.

• Minimum Wage: Virginia's minimum wage currently sits at $12.00 per hour. House Bill 1 would have increased the minimum wage from $12.00 per hour to $13.50 per hour in 2025 and $15.00 per hour in 2026. Governor Youngkin vetoed the bill, however, reasoning that the increase ignores the vast economic and geographic differences across the Commonwealth and would prejudice small businesses, would harm Virginia's economic competitiveness, and is unlikely to attract jobs to the Commonwealth. (Regardless, as the law currently stands, the Virginia minimum wage will be adjusted for inflation by the Commissioner of the Department of Labor and Industry beginning on January 1, 2027, and every 12 months thereafter.)

• Pay Transparency: Recent years have seen the proliferation of salary history bans and pay transparency laws around the country. Consistent with this trend, Senate Bill 370 would have prohibited Virginia employers from seeking and relying on the wage or salary history of prospective employees in the application process. Furthermore, the bill would have required employers to include a wage or salary range in public and internal job postings. While Governor Youngkin expressed his concerns regarding wage inequality among women and minorities, he found the "one-size-fits-all" approach would have had potential adverse effects on small businesses that lack a dedicated human resources department, hindering their ability to comply and exposing them to lawsuits. Governor Youngkin also expressed that the proposed legislation represents a government overreach, offers incomplete information during the hiring process, and disregards business needs.

• Expansion of the Virginia Whistleblower Protection Law: In 2020, Virginia enacted the Virginia Whistleblower Protection Law (VWPL) (Section 40.1-27.3 of the Virginia Code), which protects employees from retaliation for engaging in certain types of protected conduct, including reporting in good faith alleged violations of federal or state law or regulation to government officials and refusing to engage in unlawful behavior at an employer's request. Under the VWPL, an aggrieved employee may bring a civil action in a court of competent jurisdiction within one year of the employer's prohibited retaliatory action. If successful, an employee is entitled to recover injunctive relief, reinstatement, lost wages and benefits (i.e., actual damages), and reasonable attorneys' fees and costs. House Bill 770 would have extended the statute of limitations for claims under the VWPL from one year following "the employer's prohibited retaliatory action" to one year following "the employer's final prohibited retaliatory action" – a change that would render timely actions from many years earlier whenever a plaintiff alleged that the employer took multiple retaliatory actions, as long as at least one of those actions occurred within the 12 months prior to filing suit. The bill would also have increased the remedies available to employees by permitting a court or jury to award double damages for willful violations. Governor Youngkin vetoed this bill, explaining that the current law already provides that a judge can order reinstatement or other forms of equitable relief after a verdict. Juries, as Governor Youngkin concluded, are finders of fact that deliver verdicts, not remedies.

• Expansion of Overtime Protections: Senate Bill 494 would have extended overtime requirements to individuals who are employed in domestic service in a household and who reside in such household ("live-in domestic workers"). This would have been in stark contrast with the Fair Labor Standards Act (FLSA), which provides that live-in domestic workers are exempt from the FLSA's overtime pay requirement. Governor Youngkin reasoned that such an extension would likely cause unwarranted confusion, as many domestic service employees have atypical compensation arrangements, which include such arrangements as covering the value of employees' housing, transportation, and meals, rather than providing purely monetary remuneration.

• Paid Family and Medical Leave: Senate Bill 373 would have created a statewide generally applicable paid family and medical leave program funded through payroll contributions by employers and employees to a statewide trust fund at a standard percentage to be set by the DOLI commissioner. According to Governor Youngkin, this "one-size-fits-all" solution removed the incentive for the private sector to provide these types of benefits, explaining that many businesses in Virginia already have paid family and medical leave policies. Moreover, he found such a program would be unfair to small businesses and nonprofits.

• Informing Complaining Employees of Rights: House Bill 569 would have required employers that receive an employee complaint alleging sexual assault, harassment, or any other form of discrimination to affirmatively inform the employee of their right to file a charge with the EEOC or the Office of the Attorney General within 300 days of the alleged harassing or discriminatory practice. Governor Youngkin reasoned that not only did the proposed bill place a heavy burden on small businesses, but employers are not legal counselors and should not be expected to provide legal advice regarding potential legal actions against their own companies.

While the governor stopped these bills from becoming law in 2024, as we look towards a state-wide election year in 2025, these bills may resurface in upcoming legislative sessions. Stay tuned.

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