The answer depends on their line or work and their pay structure. FLSA regulations do provide an overtime exemption for certain employees of retail and service establishments who are paid on a commission basis. Retail and service establishments are defined as establishments that have a recognized retail concept and where 75% of sales are not goods for resale. Factors relevant to the “retail concept” might include whether the business sells goods or services to the general public or whether the business participates in the manufacturing process.
To qualify for the exemption under Section 7(i):
1. the employee must be employed by a retail or service establishment;
2. the employee’s regular rate of pay must be at least one and one-half times the applicable minimum wage; and
3. more than half the employee’s total earnings in a representative period must consist of commissions.
The representative period cannot be less than 1 month, or more than one year. If all of these these elements are not satisfied, the employee would remain entitled to overtime pay. Because the employer must verify that the regular rate of pay exceeds 1.5x the minimum wage, the employer still needs to track total hours worked during each pay period.
Prior to 2020, the U.S. Department of Labor published lists of businesses that they considered to be retail or non-retail. The new rule withdraws their arbitrary reliance on the lists, allowing more industries to argue for the exemption.
Virginia code Section 40.1-28.01 currently prevents employers from using non-disclosure or confidentiality agreements to conceal the details of sexual assaults occurring in the workplace. As recently signed into law, the statute will be amended to include broader claims of sexual harassment. The modified statute also will void non-disparagement provisions that could be asserted to stifle free speech of victims of sexual assault or harassment. While “sexual assault” is already defined in various criminal statutes, the modified provision will apply the definition of “sexual harassment” found in Virginia Code Section 30-129.4, which states:
Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
The final version of the amendment does not go so far as to void provisions that limit the disclosure of other discrimination complaints.
In the past, it was not uncommon for employers to enforce strict confidentiality policies that limited an employee’s ability to discuss their own wage or salary information with co-workers, presumably for the purpose of deterring requests for wage increases or concealing disparate pay structures.
Passed in 2020, Virginia Code Section 40.1-28.7:9 now holds that “no employer shall discharge from employment or take other retaliatory action against an employee because the employee (i) 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 or (ii) filed a complaint with the Department alleging a violation of this section.” However, the law does specifically address restrictions on prior employees, thereby leaving open the issue of whether employers can enforce confidentiality provisions in settlement or severance agreements entered into post-termination.
On the national level, the National Labor Relations Act (NLRA) also prohibits employers from disciplining non-supervisory employees for discussing their pay with co-workers. The NLRA protects employees’ rights to engage in “protected concerted activities,” which includes discussing wages, benefits, and other working conditions with their colleagues.
In combination, these law provide protection for employees who discuss their wages with other employees, and employers who violate these protections can face legal consequences. Employees who believe they have been retaliated against for discussing their wages or for filing a complaint related to wage discrimination can file a complaint with the appropriate government agency or seek legal counsel.
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.
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.
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 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.
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.
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.
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.