Virginia employees now protected if they miss work to attend eviction proceedings.

A little known amendment to the Virginia code now affords employees a new basis for job protection in the event they are compelled to attend court for an unlawful detainer or eviction. It is now unlawful for an employer to “discharge [an employee] from employment or take any adverse personnel action against him as a result of his absence from employment due to appearing at any initial or subsequent hearing on such summons, provided that he has given reasonable notice of such hearing to his employer.” Although the statute does not specify a private cause of action, the established policy could be cited as a basis for wrongful discharge under Virginia common law, also known as a Bowman claim.

2023 Minimum Wage Increase

Historically, the Fair Labor Standards Act has created a national minimum wage for hourly employees. Though the federal minimum wage remains at $7.25 per hour, Virginia is now among the states that have set a higher minimum wage standard under state law. The Virginia Minimum Wage Act, passed in 2020, establishes incremental wage increases that will raise the minimum wage to $15 per hour by 2026. Effective January 1, 2023 the minimum wage in Virginia increases to $12 per hour. Absent amendments to the law, the next increase will occur in January 2025. Virginia law adopts federal exemptions under the FLSA and also includes its own exceptions, such a babysitters working fewer than 10 hours per week, students participating in a bona fide educational programs, golf caddies, taxicab drivers and persons employed in summer camps for children.

Are Non-Competes Enforceable in Virginia?

For years, companies have required that new employees sign covenants not to complete as a way blocking them from seeking work with competitors. If taken to an extreme, these provisions can substantially limit employment opportunities for workers in their chosen field within their own locality. As of 2020, Virginia law now protects “low wage” employees from being restricted in their future employment.

As defined by the statute, a “covenant not to compete” means a covenant or agreement, including a provision of a contract of employment, between an employer and employee that restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer. the new lay strictly prohibits employers from requiring or enforcing non-competes for low wages employees and provides a private cause of action for violations.

A “low wage employee” means an employee whose average weekly earnings are less than the average weekly wage of the Commonwealth as determined pursuant to subsection B of § 65.2-500. In 2022, that number was set at $1,290 or $67,080 annually.

Not everyone is covered by the new law. Besides those who earn in excess of the threshold, the law does not cover persons whose earnings are derived primarily from sales commissions, incentives, or bonuses paid to the employee by the employer. The law also does not apply retroactively to persons who signed non-competes prior to 2020.

Virginia Statute Limits Certain Provisions in Confidentiality Agreements

Virginia Code Section 40.1-28.01 was passed in 2019 to prohibit any provision in a nondisclosure or confidentiality agreement that has the purpose of concealing the details of a sexual assault. The new section is not retroactive, but it does ensure that employers will not be able to rely upon non-disclosure agreements to conceal sexual assaults occurring in the workplace. At present, the language is narrowly drafted to cover current and prospective employees only. Accordingly, confidentiality agreements executed by former employees in consideration for severance or settlement payments may not be covered by the statutory protection.

Can the NLRB outlaw confidentiality clauses in severance agreements?

The National Labor Relations Board has reversed its prior precedent, holding that confidentiality and non-disparagement clauses in severance agreements for non-managerial employees can violate an employees basic right to discuss terms and conditions of employment under Section 7 of the National Labor Relations Act – even if the employee is not covered by a union. Though traditionally linked to union activity, Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

The new standard was set forth in McLaren v. Macomb, 372 NLRB 58, as issued in February 2023. The decision does not, on its face, outlaw all confidentiality provisions, but it does take issue with broad language that prohibits the employee from discussing the terms of the agreement with any third party. The Board reasoned that an absolute ban that prohibits employees from discussing the terms of the agreements with co-workers or union representatives could produce a chilling effect that would discourage employees from bringing charges before the Board, co-operating with Board investigations or assisting their co-workers who were subjected to unlawful actions. Note that the NLRB’s ruling generally does not pertain to Supervisory personnel who have general managerial authority such as the right to hire, discipline and fire employees.

Can your employer avoid overtime payments by using an adjustable pay scheme?

In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.


The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.

In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.


https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html

Can False Rumors Serve as the Basis for Claims of Sexual Harassment?

In Parker v. Reema Consulting, the Fourth Circuit addresses a claim where a female subordinate alleges that she was subjected of repeated rumors of sleeping with her supervisor to secure a promotion.  Importantly, company managers participated in the spreading of the rumors. To state a claim under Title VII for a hostile work environment because of sex, the plaintiff must allege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s sex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.

In this case, The Fourth Circuit agrees that these sex based rumors can serve as the basis for a hostile environment claim and that the continuous nature of the harassment was sufficiently pervasive as to interfere in her work.

https://law.justia.com/cases/federal/appellate-courts/ca4/18-1206/18-1206-2019-02-08.html

Is an employee entitled to be reinstated to his or her same position following FMLA leave?

Not exactly.   Under the FLMA, qualified employees are entitled to 12 weeks of leave for a serious medical condition.  At the end of such leave, the employer must reinstate the employee in the position held by the employee at the commencement of the leaver – or – to an equivalent position with equivalent pay, benefits and other terms and conditions of employment.  In Waag v. Sotera Defense Solutions (May 2017), the Fourth Circuit considered the case of of a program manager who required FLMA medical leave after an accident.  During his absence, the company moved forward by filling the program manager’s position.  When he sought to return to work, they re-assigned him to a different role without changing his pay structure.  In finding the re-assignment to qualify as an equivalent position, the Court considered the fact that  (i) both positions were paid the same salary and benefits; (ii) both positions were senior director positions that required plaintiff to report to a vice president; and (iii) neither position included significant managerial responsibilities.  In sum, the Court emphasized that restoration “does not indicate a preference for restoring covered employees to their pre-leave positions over ‘equivalent’ positions, and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

Are Managers that Investigate Discrimination Protected From Retaliation?

In addition to prohibiting job discrimination on the basis of  race, color, religion, sex, or national origin, Title VII contains an Opposition Clause to protect workers from retaliation for advancing claims under the statute.   Typically, the Courts have defined “opposition” broadly to include a  variety of conduct in opposition to unlawful employment practices, including both formal grievances and informal complaints.  In Demasters v. Carilion Clinic,  the Fourth Circuit recently considered whether a manager, who failed to support a pro-management position in another employee’s sexual harassment complaint, himself engaged in protected opposition under Title VII.

At issue in DeMasters is the proper application of the “manager rule,” a doctrine applied by some courts that requires an employee to be acting outside of a management role in order to engage in protected activity.  When applied, managers that routinely accept, investigate or evaluate complaints of other employees are not participating in protected activity when performing their regular job duties.  After consideration, however, the Fourth Circuit rejected a per se extension of the “managers rule” to Title VII, holding that “the only qualification placed upon an employee’s invocation of protection from retaliation under Title VII’s Opposition Clause is that the manner his opposition must be reasonable.”

Demasters v. Carilion Clinic (Fourth Circuit, August 10, 2015)

Can You Draw Unemployment Benefits if You Resign From Your Job?

If you quit or otherwise leave a job voluntarily, an employee must prove “good cause” in order to receive unemployment benefits. However, an employee who is forced to resign is not deemed to have left work voluntarily when the employee had no real option to return to the job.


By statute, “good cause” does not include leaving work to become self-employed or to accompany a spouse to a new locality (unless it relates to a military transfer). General dissatisfaction with a job is not good cause. To establish “good cause,” the employee must show (1) that he or she suffers from an objectively reasonable job dispute or other conflict that serves as a necessary and compelling reason to leave employment; and (2) that he or she has exhausted all steps to resolve any conflict that would be taken by a someone desirous of retaining their employment. For example, an employee who is troubled by a conflict with a co-worker first would be expected to pursue some resolution by reporting the behavior to a supervisor or human resource office.


“Good cause” is determined on a case-by-case basis, but may include situations such as severe harassment or discrimination, non-payment of wages or significant cuts in pay, illegal or unsafe working conditions, family care obligations, or personal medical reasons. However, if your medical condition prevents you from working for any employer, you will not meet the VEC’s other requirement that you are otherwise available for work. When dealing with medical conditions that impact work ability, an employee first should consult with their physician prior to leaving a job. The VEC is more likely to accept a medical cause if your physician advised that your current position was not suitable due to physical or mental limitations.


If you are denied unemployment benefits, you have the right to appeal your claim and present your case at a hearing before an appeals examiner. You also have the right to be represented by an attorney at this hearing.