The Growing Trend Toward Pay Transparency in Virginia

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In recent years, pay transparency has emerged as notable trend in the employment sector. Pay transparency laws require employers to disclose salary ranges and compensation details in job postings and upon request. The primary motivation behind this shift is to promote pay equity, particularly addressing disparities based on gender, race, and disability.​

Several states have already enacted pay transparency laws. As as of 2025, at least 11 states have comprehensive requirements in place. California’s Senate Bill 1162 mandates that employers with 15 or more employees include salary ranges in all job postings, including those for remote positions. Similarly, Colorado’s Equal Pay for Equal Work Act requires employers to disclose compensation in all job postings and prohibits retaliation against employees who discuss their pay.​

However, the implementation of pay transparency laws is not without challenges. One concern is the potential for pay compression, where salary differences between employees with varying levels of experience and tenure become narrower. This could lead to dissatisfaction among long-term employees who may feel their experience is undervalued. Additionally, employers may face difficulties in setting competitive salaries if they are required to disclose compensation ranges, potentially limiting their flexibility in negotiations.

Virginia has actively considered pay transparency legislation but has not yet enacted comprehensive requirements. Most notably, Senate Bill 1132 was introduced during the 2025 General Assembly session, which would have required employers with 50 or more employees to disclose wage ranges in job postings and prohibited inquiries about salary history. The bill passed both chambers in the General Assembly but was vetoed in March 2025, but ​the upcoming change in administration could lead to the eventual enactment of similar legislation.

However, Virginia does maintain existing protections under Virginia Code § 40.1-28.7:9, which prohibits employers from retaliating against coworkers who discuss their respective wages with coworkers. As drafted “[n]o employer shall discharge from employment or take other retaliatory action against an employee because the employee … inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation.” For Virginia employers, the lack of state-mandated pay transparency means compensation disclosure remains voluntary, as existing laws focuses exclusively on wage discussion protections without the salary posting requirements found in other states.

However, even without a Virginia mandate, local employers still must navigate pay transparency if they recruit or employ remote workers in states with disclosure requirements. Many state laws apply when an employee could potentially work from that state, regardless of where your business is headquartered. If you post positions available to remote workers nationwide, you may need to include salary ranges to comply with other jurisdictions’ laws.

Virginia Employment Lawyer

dsgordonlaw.com

One Simple Rule Change Could Restructure the Social Security Disability Benefit Program

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Under current Social Security Administration rules, SSDI claimants that do not meet a listed impairment are evaluated by how their age, education and work experience affect the claimant’s ability to adjust to other work. Disability decisions are are based on “Grid Rules” that treat age as a key vocational factor. Older applicants (typically age 50 and up) receive more favorable consideration because SSA assumes that they have more difficulty making an occupational adjustment. For example, a 55 year old construction worker who only has worked a medium to heavy exertion job is not currently required to retrain for sedentary clerical work.

Recent reporting suggests that the current administration is considering a rule change that would eliminate age as a vocational factor or alternatively, move the beginning age threshold from 50 up to around 60. As a result, many older applicants will no longer qualify for SSDI benefits on the presumption that they are employable for some form of sedentary work, regardless of whether they can actually secure such employment.

The proposed change also would affect Medicare coverage because SSDI entitlement automatically triggers eligibility for Medicare after a 24-month waiting period. If fewer older claimants with severe medical impairments qualify for SSDI, a similar percentage of those individuals may have to forego health insurance coverage or take early retirement benefits to offset medical expenses, further depleting funds available for support in their actual retirement years.

While the grid rules admittedly were crafted during a different economy, the wholesale elimination of age as a factor in disability assessment disregards the practical impact of age as a vocational factor. A job that exists “on paper” does not always correlate to realistic job opportunities. Older workers with severe medical conditions may not have the time or opportunity to retrain for new occupations if their skills do not easily transfer to sedentary work. Moreover, older workers may struggle to obtain alternative positions if their medical conditions require additional disability accommodations or if they face age bias when considered against younger applicants.

In short, removing age as a consideration in SSDI determinations would not be a narrow technical adjustment or update of the system; it would be a substantive policy shift with direct implications for the scope of SSDI coverage, Medicare for disabled workers, and the redistribution responsibility of health-care expenses.

D. Scott Gordon, Virginia Disability Attorney

https://dsgordonlaw.com/social-security-disability/social-security-disability.html

Virginia HB 1921: A Legislative Push for Universal Paid Sick Leave

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Virginia came close to dramatically expanding paid sick leave protections in 2025, but House Bill 1921 ultimately fell victim to a gubernatorial veto that the legislature couldn’t override. The failed legislation highlights an ongoing debate in the Commonwealth about worker protections versus business flexibility.

The bill proposed extending paid sick leave to virtually all Virginia employees, building on a modest 2021 law that covered only home health workers. Under HB 1921, workers would have accrued one hour of paid sick leave for every thirty hours worked, capped at forty hours annually, with the ability to carry unused time into the next year. Sponsors estimated the change would have benefited approximately 1.2 million Virginians who currently lack any paid time off. The legislation passed both chambers along partisan lines before landing on Governor Glenn Youngkin’s desk in March 2025.

Supporters framed paid sick leave as both a public health necessity and an economic investment. They argued that workers shouldn’t have to choose between their health and their paycheck, pointing to research showing that paid leave reduces disease transmission, lowers employee turnover, and improves long-term productivity. Advocates emphasized that the COVID-19 pandemic exposed how lack of paid leave disproportionately harms low-income workers and creates preventable public health risks. They also noted that neighboring Maryland and the District of Columbia already have similar protections, and that Virginia’s forty-hour cap represented a modest requirement unlikely to burden responsible employers.

Opponents, particularly business organizations, raised concerns about imposing a one-size-fits-all mandate on Virginia’s diverse economy. They warned that requiring all employers to provide paid sick leave could create significant administrative and financial burdens, especially for small businesses operating on thin margins or still recovering from pandemic disruptions. Critics argued the mandate might lead employers to reduce hours, delay hiring, or even lay off workers to offset increased labor costs. Some framed the issue philosophically, contending that employment benefits should remain a matter of private negotiation rather than government mandate.

Governor Youngkin vetoed HB 1921 in March 2025, characterizing it as an inflexible statewide mandate that failed to account for Virginia’s varied business landscape. He argued the bill risked discouraging job creation and represented unnecessary government intrusion into private employment relationships. The House sustained the veto on April 2, 2025, leaving Virginia’s limited 2021 law intact. However, the close legislative votes suggest significant appetite for reform. Legislative observers expect the issue to resurface, possibly in modified form during the 2026 session. Future versions might include exemptions for very small employers, phased implementation timelines, or tax incentives to offset compliance costs—adjustments designed to address economic concerns while advancing worker protections.

D. Scott Gordon, Richmond Employment Lawyer

dsgordonlaw.com

Potential Expansion of Vicarious Liability for Virginia Employers

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A new Virginia law under Va. Code Section 8.01-42.6 potentially changes the legal landscape for subject employers, especially those in industries serving vulnerable populations. This legislation creates a new path for holding employers accountable for the harmful acts of their employees, even if those acts were intentional and fell outside the traditional “scope of employment.”

Previously, Virginia’s respondeat superior doctrine protected employers from liability for most intentional torts by its employees, such as assault or abuse if the act was not performed to benefit the employer. The new law introduces a different standard, allowing a plaintiff to hold an employer vicariously liable if the employee’s tortious conduct occurred while they had contact with a designated “vulnerable victim” and the employer failed to exercise reasonable care to prevent the harm. Vulnerable victims are defined as those at a substantial disadvantage due to a physical or mental condition, with the law specifically listing patients, residents of assisted living facilities, and passengers of certain carriers, among others.

This change places a greater risk on subject employers, who can no longer rely on the defense that an employee’s intentional act was personally motivated. Instead, a plaintiff can argue that the employer’s own negligence in hiring or supervision created the opportunity for the harm to occur. This shift particularly impacts healthcare and assisted living businesses. Patients and residents are per se vulnerable victims, heightening the importance of credentialing, staffing oversight, chaperone policies, incident reporting, and prompt corrective action to demonstrate reasonable care and control.

Virginia Employment Lawyer

EEOC Shifts Away from Disparate Impact Enforcement

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The Equal Employment Opportunity Commission (“EEOC”) is moving forward with a significant shift in workplace discrimination enforcement. By September 30, 2025, the agency seeks to administratively close all pending charges based solely on disparate impact theory, issuing “right to sue” letters that will send these cases directly into federal court. This move follows an April executive order, which instructed federal agencies to halt disparate impact enforcement “to the maximum extent possible.”  The EEOC frames the move as a broader realignment of federal enforcement priorities away from impact‑based theories and toward intentional discrimination. 

For those unfamiliar with the legal landscape, “disparate impact” addresses policies that appear neutral but disproportionately harm protected groups, such as hiring practices that screen out minority candidates, unnecessary degree requirements, or criminal background checks. Unlike disparate treatment cases that require proof of intentional discrimination, disparate impact claims focus on statistical patterns of harm.

The change in EEOC enforcement practices does not eliminate the disparate impact legal theory rooted in Griggs v. Duke Power and the Civil Rights Act amendments of 1991. However, the practical consequences are diverse. Traditionally, a plaintiff might benefit from administrative investigations that yield discoverable business records and vet employer defenses. With employers less likely to be subject to EEOC investigations and data gathering, cases will have to move abruptly into federal court, where plaintiffs must now shoulder the full burden of discovery and proof. Alternatively, the burden of investigation could fall upon comparable state agencies in jurisdictions that provide overlapping state remedies.

Nevertheless, Employers should not treat the EEOC directive as a license to cut compliance corners. They should continue to maintain and document disparate-impact analyses, job-relatedness defenses and validation studies for tests and standards. Administrative closure does not immunize against private suits or state enforcement.

Virginia Employment Lawyer

The Introduction of AI Into the Hiring Process

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From initial job postings to final hiring decisions, AI-driven tools are reshaping how companies evaluate and select employees. While these technologies promise unprecedented efficiency, they also introduce a complex web of legal and ethical challenges, chief among them the risk of algorithmic bias and discrimination.  The question is not whether AI can discriminate, but how to prevent it from doing so.

The legal theory of “disparate impact” is particularly relevant to AI hiring systems. Under this doctrine, employers can be held liable for discrimination even if they didn’t intend to discriminate, provided their practices have a disproportionate negative effect on protected groups. This means that an AI system that consistently screens out candidates from certain ages, genders, racial or ethnic groups could violate federal law, regardless of whether the algorithm explicitly considers those factors.  For example, AI may identify and use seemingly neutral data points that are, in fact, proxies for protected characteristics. A candidate’s zip code could be a proxy for their race or national origin.  Gaps in employment history, which can be a proxy for gender, may also be unfairly penalized. Because AI models “learn” from the data they are trained on, if that data reflects historical or societal biases, AI potentially can learn and perpetuate those same biases.

Employers are responsible for the outcomes of their hiring practices, regardless of whether those decisions are made by a human or an algorithm. The EEOC has issued guidance emphasizing that AI selection tools must not result in “disparate impact,” which occurs when a neutral policy or practice disproportionately disadvantages a protected group. The EEOC treats algorithmic tools as selection procedures” under Title VII, expects adverse impact monitoring and warns that employers can remain liable even when vendors design/administer the tool. The EEOC’s position is clear: an employer cannot evade liability by outsourcing their selection procedures.

A growing number of jurisdictions are enacting specific regulations for AI in employment. New York City’s law, for example, requires employers to conduct an independent bias audit of any automated employment decision tools. States like Illinois and Colorado have also passed laws requiring employers to prevent algorithmic discrimination and provide notice to applicants when using AI. Recent court decisions also establish that AI vendors can be held liable as “agents” of employers, representing a fundamental shift in liability. In Mobley v. Workday, a federal court allowed collective action to proceed based on allegations that a software company’s AI screening tools caused disparate impact against applicants 40 and older, and recognizing potential vendor liability under an employer “agent” theory.

Strategies for Employers

Given the significant legal risks, employers must be proactive in their use of AI. Here are critical steps to take:

  1. Conduct a Disparate Impact/Bias Audits: Before deploying any AI tool and on an ongoing basis, regularly audit its outcomes to ensure it is not disproportionately screening out protected groups. If a disparate impact is found, the tool must either be revised or validated as job-related and consistent with business necessity.
  2. Maintain Human Oversight: AI should be a tool to augment, not replace, human decision-making. Ensure that a human is “in the loop” and can review and override any automated decisions.
  3. Vet Your Vendors: Employers cannot escape liability by outsourcing. Before purchasing an AI tool, demand transparency from the vendor regarding their bias testing, data sources, and the algorithm’s decision-making process. Include contractual protections that hold vendors accountable for discriminatory outcomes.
  4. Provide Reasonable Accommodations: Ensure AI tools are accessible and offer alternative assessment methods for candidates with disabilities, as required by the ADA.
  5. Be Transparent with Candidates: Inform applicants and employees when AI is being used in the hiring process and explain how it will affect them.
  6. Develop Clear Policies: Establish clear internal policies on the ethical and legal use of AI in hiring and provide training to HR staff and managers on how to use these tools responsibly and identify potential bias.

The integration of AI into hiring processes represents a transitional moment in employment law and practice. The technology that was intended to eliminate human bias potentially creates new forms of systematic discrimination. Courts continue to apply traditional anti-discrimination principles to AI-powered hiring decisions, and the legal trajectory clearly favors expanded liability rather than reduced oversight. For employers, the path forward requires a fundamental shift in thinking about AI hiring tools. Rather than viewing them as neutral technological solutions, they must be understood as powerful systems that require active management.

A New Standard for Workplace Discrimination after Muldrow v. City of St. Louis

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Muldrow v. City of St. Louis, 601 U.S. 346 (2024), resets the bar for Title VII discrimination claims. The plaintiff, a police sergeant, alleged an involuntary transfer replaced her with a male officer and imposed less desirable duties, schedule changes, and loss of job privileges, though rank and pay stayed constant. The Eighth Circuit affirmed dismissal under a “material employment disadvantage” test, which the Supreme Court rejected as inconsistent with Title VII’s text and structure. The Supreme Court’s opinion resolves a long-standing circuit split over whether Title VII requires “significant” harm for discrimination claims that do not involve economic losses or formal demotions

In a unanimous decision, the Court held that an employee alleging a discriminatory transfer “must show some harm with respect to an identifiable term or condition of employment,” but that such harm “need not be significant” to violate Title VII. The Court rejected circuit rules demanding a “material employment disadvantage” or other heightened adversity showing, explaining that importing a significance test adds words that Congress did not enact into Title VII’s prohibition on discrimination “with respect to compensation, terms, conditions, or privileges of employment”.

Core standard clarified

Title VII plaintiffs must prove discriminatory treatment and a resulting identifiable injury to the job’s terms, conditions, or privileges, but the injury need only be some harm rather than a heightened “significant” or “material” harm. The Court emphasized that discrimination means being made worse off because of a protected characteristic, and nothing in the statute scales how much worse off one must be; requiring “significance” imposes hurdles contrary to the statute’s plain language.

What counts as “some harm”

The decision requires a tangible, job-related detriment—changes to duties, schedules, prestige, responsibilities, or privileges can qualify if they concretely alter terms or conditions. In Muldrow, the alleged harms included loss of specialized responsibilities and prestige, schedule changes, and loss of an unmarked take-home vehicle, illustrating how non-pay consequences can meet the threshold when tied to job terms or conditions. The Court did not catalog every qualifying harm or define “some” with precision, leaving lower courts to apply the standard case by case.

Broader implications

By lowering the degree-of-harm threshold, the Court made it easier for discrimination claims based on transfers to proceed past pleading and summary judgment, particularly where prior circuit precedent demanded “material” adversity. The ruling is not confined to transfers; its reasoning applies across Title VII discrimination claims so long as the plaintiff shows some injury to identifiable terms or conditions of employment caused by protected-class discrimination. The decision still may leave intact separate, higher adversity standards in retaliation cases, which many courts continue to frame as requiring “materially adverse” actions in that distinct context.

2025 Amendments to the Virginia Non-Compete Statute

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Effective July 1, 2025, Virginia will expand its restrictions on non-compete agreements, broadening the definition of employees protected from non-competition covenants. Under current law, Virginia Code § 40.1-28.7:8, employers already are prohibited from entering into or enforcing non-compete agreements with “low-wage employees,” defined as those earning less than the Commonwealth’s average weekly wage. This threshold figure adjusts annually and was set at $76,081 annually for 2025.


Under the statutory amendments (Senate Bill 1218), the new definition of “low-wage employee” now expands to include all employees classified as non-exempt under the Fair Labor Standards Act (FLSA), regardless of their earnings. Non-exempt employees typically are eligible for overtime. With the amendment, new non-compete agreements will be banned for any employee who does not qualify for an FLSA exemption (such as executive, administrative, professional, outside sales, or certain computer employees), even if they earn more than the average weekly wage. However, employees whose pay is primarily from sales commissions, incentives or bonuses remain excluded from the definition of “low-wage employee”.

Existing Non-Compete agreements in place prior to July 1, 2025 are not voided and still could be enforced if they meet other reasonableness tests. The law and these amendments do not prohibit nondisclosure agreements (NDAs) or agreements protecting trade secrets, confidential, or proprietary information, provided they do not function as de facto non-competes.

Supreme Court Lowers Bar for “Reverse Discrimination” Lawsuits

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In today’s (6/5/2025) Ames v. Ohio Dept. of Youth Srvcs. ruling, the U.S. Supreme Court’s unanimously made it easier for individuals from majority groups to bring workplace discrimination claims, often referred to as “reverse discrimination” lawsuits. The ruling involves a woman who alleged she was denied a promotion and later demoted because of her sexual orientation. The plaintiff argued that these decisions were motivated by bias against her as a heterosexual woman and that her employer favored LGBTQ employees. Previously, lower court had required members of a majority group to show not only the standard elements of a discrimination claim under Title VII of the Civil Rights Act of 1964, but also to provide additional evidence—so-called “background circumstances”—suggesting her employer was unusually likely to discriminate against majority group members. The Supreme Court concluded that the evidentiary standard for discrimination claims should be uniform, regardless of the claimant’s identity.

It’s important to note that the Supreme Court did not rule on whether Ames actually suffered discrimination. Instead, the justices focused solely on the legal standard required to bring such a case to trial. Ames’s lawsuit now returns to the lower courts for further proceedings under the new, less stringent standard.

Overtime Exemption Thresholds for Salaried Workers Set to Change in 2025

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The U.S. Department of Labor’s final rule on overtime exemptions, announced on April 23, 2024, is set to bring significant changes to the salary thresholds for exempt employees starting July 1, 2024, with further increases planned for 2025. This rule aims to extend overtime protections to millions of workers and update the regulations under the Fair Labor Standards Act (FLSA).

Key Changes

On July 1, 2024, the minimum salary threshold for executive, administrative, and professional employees to be classified as exempt from overtime rose to $844 per week or $43,888 annually. This marks a substantial increase from the previous threshold of $684 per week or $35,568 annually. As currently planned, an even more significant change is scheduled for January 1, 2025, when the salary threshold will further increase to $1,128 per week or $58,656 annually. Similarly, the highly compensated employee exemption increased to $132,964 on July 1, 2024, and is set to increase again to $151,164 on January 1, 2025.

Impact and Considerations

Assuming they take effect as scheduled, employers must carefully evaluate their workforce to identify roles that may be affected by the new thresholds. Some key considerations include:

  1. Reclassification: Employers may need to reclassify some exempt employees as non-exempt if their salaries fall below the new thresholds.
  2. Salary Adjustments: For employees near the threshold, companies might consider raising salaries to maintain exempt status.
  3. Compliance Costs: Businesses should anticipate increased labor costs, either through higher salaries or potential overtime payments.
  4. State Laws: Employers must also be aware of state-specific overtime laws, which may have higher thresholds or different requirements

Like all Agency regulations, final implementation may be challenged or delayed by court challenges or politics. As we near the implementation of the 2025 date, Employers should monitor U.S. Department of Labor updates to track the status of this pending change.