Changes to labor laws could be on the horizon

December 29, 2019

Unlike other states, Virginia historically relied on federal employment laws in regulating important workplace rights, such as pay equity, minimum wage, workplace safety, and civil rights.

In 2020, Virginia Democrats will have full legislative control and will have already taken steps that signal some bold efforts to change Virginia employment laws or to enact other laws that will indirectly impact the workplace.

Democratic lawmakers have filed bills and resolutions ahead of next month’s legislative session, intending to focus on approving the Equal Rights Amendment, decriminalizing some marijuana laws and raising the minimum wage.

Equal Rights Amendment: Virginia lawmakers are hoping to be 38th state — and last needed — to ratify the Equal Rights Amendment to the Constitution.

It remains unclear what impact the amendment would have on employers.

Proponents believe that current laws inadequately guarantee rights, and point to cases such as the 2007 Supreme Court equal pay case that revealed what some described as a weakness in remedying women’s equal pay rights due to a statute of limitations constraint. Federal law subsequently was changed.

Minimum wage: Virginia currently follows the federally imposed minimum wage of $7.25 per hour.

Many states and localities throughout the country have passed legislation imposing higher rates of pay than the minimum wage.

One Virginia senator is proposing to increase Virginia’s minimum wage to $10 in July 2020 and then by a dollar every July until 2025.

Marijuana laws: Lawmakers will be seeking to decriminalize certain marijuana laws.

This will impact the workplace because workers will falsely believe that they cannot be disciplined or terminated for marijuana use.

Since marijuana remains a controlled substance under federal law, employers still will be able to impose strict rules around employees who test positive for the drug unless Virginia also passes a law prohibiting employers from disciplining employees who test positive for marijuana.

Employers are not required to provide reasonable accommodations to employees who legally use marijuana for medical purposes because current illegal drug users (according to federal law) are not eligible for accommodations under the Americans with Disabilities Act.

Right-to-work laws: Virginia is a “right-to-work” state, which means that employees are entitled to work for an organization without being forced to join a union and pay dues to the union.

But some Democratic lawmakers want to reverse Virginia’s long-standing law by forcing employees to join a union if they are part of a collective bargaining unit. Gov. Ralph Northam, a Democrat, has said he supports the current law.


Changes are taking place on the federal level.

Employers need to be aware of changes to the Fair Labor Standards Act that update overtime pay.

Effective Jan. 1, the Department of Labor will raise the minimum salary basis test for certain exemptions from the current enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker) for employees working in the so-called white-collar exemptions.

This means employees who are otherwise qualified for the exemption under the administrative, executive and professional categories will be entitled to overtime pay unless they also meet the salary basis test of earning at least $684 per week.

In addition, the Labor Department also raised the threshold for the highly compensated employee exemption from the currently enforced level of $100,000 per year to $107,432 per year. The new rule also permits employers to consider up to 10% of the compensation as bonuses and incentive pay.