An Overview of Virginia’s Hiring Laws
Virginia law has a number of rules concerning the hiring process. State and federal law may require you to take specific steps before hiring an employee and may also place limitations on your actions after that employee begins work.
This Update contains a few of the most important state laws governing hiring practices in Virginia. But be aware that these are not the only laws to which you will be subject. Other state or federal laws may govern your hiring process, such as the specific requirements regarding government contractors, federal contractors, employers with federal contracts, or employers with a large number of employees.
State and federal law prohibits an employer from asking about an applicant’s race, color, religion, national origin, sex (including pregnancy), age, or disability, except as necessary to determine the applicant’s eligibility for a position. Be aware that some local jurisdictions have laws that are more restrictive that prevent employers from inquiring about an applicant’s religious beliefs or affiliation.
Virginia law prohibits an employer from making hiring decisions based on an applicant’s genetic information. Thus, information about an applicant’s health history is inadmissible at all stages of the hiring process, including interviews, background checks, and medical exams.
The Virginia Genetic Information Nondiscrimination Act protects an applicant against a discriminatory hiring practice based upon genetic information. It is an unlawful employment practice for an employer to use that information (other than DNA analysis) for any purpose, including decisions about hiring, firing , compensation, benefits, or training.
Keep in mind that federal law may offer even greater protections to applicants. Under the federal Genetic Information Nondiscrimination Act (GINA), it is also an unlawful employment practice for an employer with 15 or more employees to discriminate against an applicant on the basis of the applicant’s genetic information. GINA prohibits employers from using genetic information to make decisions about hiring, firing, compensation, benefits, or training, except in certain, limited situations.
Under Virginia law, you may ask about lost time due to work-related injuries, but you cannot use that information to discriminate against an applicant or to retaliate against the employee post-hire for filing a workers’ compensation claim.
Virginia law requires an employer to provide a final paycheck no later than the next regular pay date after the employee’s last day of work. On the last day, guidance should be provided regarding how and when the final paycheck will be given to the employee, and the former employee should receive written confirmation.
Other laws and practice advisory opinions govern many other areas of the hiring process in Virginia, including requirements regarding employment references and providing truthful reference checks, I-9 verification and paperwork, e-verify requirements, duties regarding employees with a suspended, revoked, or cancelled driver’s licenses, proper interviewing techniques, employment contracts, and a variety of issues that apply to government workers, federal contractors, and government contractors working on federal construction projects.
Equal Employment Opportunity Obligations
Within the state of Virginia there are multiple federal laws that assist in regulating all employers in the hiring process. Virginia is an Employment at Will state following federal laws when it comes to hiring. Therefore, a company can let go one with or without notice and for any reason lawful or not. While all states can be employment at will, there are only a few that have state-specific laws regarding hiring employees. Most of the state-specific laws deal with discrimination of some sort. With the trend in the workplace of managing diversity these laws are important as they to stop discrimination in the hiring process based on some of the protected classes. Federal regulations assist in protecting the following classes from discrimination in hiring. They are Age, Color, Pregnancy, Race, Religion, Ethnicity, and Gender. There are a few other risks under federal law, but they generally deal with how employees are treated during their employment with the company. Most companies avoid these issues by implementing policies and procedures that prohibit discrimination, conduct training, and have thorough and effective complaint procedures. However, with so much information available and so many new career opportunities to partner on with companies there is no need to treat employees unequally.
Criminal Background Checks & Pre-Employment Information
Employers need to be aware of the legal landscape that applies to background checks and pre-employment screenings. A large number of Virginia statutes and federal laws impose risks and pitfalls for employers in the pre-screening process. These laws include the Fair Credit Reporting Act (FCRA) and Title VII of the Civil Rights Act of 1964. If all of the required pre-screening protocols are not followed, employers could be liable to the applicants or even to non-applicants in certain situations under the laws governing employment discrimination. The U.S. Department of Labor has the authority to immediately investigate any grievance made by applicants and employees, which is a powerful tool for the applicant to use. Under Title VII, if disparate treatment or disparate impact results from these screening practices, employers could be liable. There is significant overlap between an employer’s obligations under FCRA and Title VII. These statutes are explained here in conjunction with some local and state Virginia statutes that employers must also be careful to follow.
Ban the Box:
Virginia does not have any ban-the-box laws that state or local employers currently have to comply with, but there are some local areas that have banned the box. As an example, the City of Richmond has banned the box, preventing employers from using a job application that contains any box asking whether an applicant has been convicted of a crime. In addition, the City of Richmond’s ordinance prevents employers from requiring that a position applicant provide information concerning their criminal history before a conditional offer of employment has been made. Applicants can be asked about their criminal history and those records can be considered, but only after a conditional offer has been made to the applicant. Employers in the City of Richmond would do well to prepare a new application that is electronic and that is compliant with the law in order to avoid claims under the Richmond Code. Employers should also be aware that the Richmond Code provides that it is unlawful for an employer to fail to provide an applicant with a written notice of the provisions of the Richmond ordinance if the omission from the application occurred.
FCRA requirements:
Unlike some cities within Virginia such as Richmond, Virginia does not currently have any "ban the box" or other such ordinances restricting employers from asking potential employees about their prior arrest or conviction history. However, that does not mean that business owners are free to use criminal history as a disqualifying factor in hiring without ever being subjected to lawsuit or investigation. Employers should be acutely aware of the requirements imposed by the Fair Credit Reporting Act (FCRA) when they seek to procure background checks on potential employees. The FCRA is a federal law that governs private employers that wish to obtain reports under which the reports of criminal history will be used for the purpose of evaluating whether an individual should be hired. If an employer uses an agency to conduct a background screening, the FCRA requires that, prior to requesting the report, the employer must provide a statement to the applicant and secure prior written consent from the applicant.
The employer must certify to the reporting agency that:
In addition, the following two disclosures must be provided to the applicant:
If the employer requests a report through the mail, he must also provide a written notice to the agency that will be preparing the report providing his name and address. The FCRA also requires that an employer make available to the applicant a summary provided by the agency that provides appropriate guidance to users of consumer reports and their responsibilities under the FCRA, including the rights of consumers as set forth by the FCRA.
Disparate Treatment v. Disparate Impact:
Disparate treatment occurs when an employer has discriminatory intent in screen criteria used during the hiring process. Disparate impact occurs when a policy or practice has a negative effect on a particular group, even if the intention was not to discriminate. For example, suppose an employer requires an applicant to have a driver’s license and to record their license number on the application. This may disproportionately exclude older workers who no longer drive, workers with disabilities and workers of certain nationalities who may not be allowed to obtain a driver’s license, such as Dominican Republic workers. Title VII of the Civil Rights Act of 1964, or Title VII, prohibits discrimination against a person (or class of persons) based on race, color, religion, sex, or national origin. Thus, under Title VII, it is illegal to discriminate on the basis of the factors noted above.
Wage & Hour Law Requirements
Virginia does not have a special or different minimum wage for most recruits. Virginia’s minimum wage is simply US$7.25 per hour. That said, Virginia does have an expanded minimum wage for those making tips, usually servers in restaurants. Virginia’s minimum wage for tipped employees is US$2.13 per hour. There are important caveats to this of course. One such is that tipped employees are entitled to be paid at least the federal minimum wage of US$7.25 per hour.
The other important point is that an employer cannot simply classify all its employees as tipped to lower the cost of its labor. If an employee makes more than US$30 per month in tips, the employer must satisfy the minimum wage requirement by making up the difference between the tip wages paid and US$7.25 per hour. For example, if a tipped employee of an employer with a minimum wage liability worked 20 hours, then made US$600 in tips in addition to his or her wages of US$50, the employer would owe that employee US$260, which is US$7.25 x 20 hours (US$145) less the US$50 already paid as wages, and less the US$600 in tips already received.
In addition to the minimum wage law, Virginia employers must also satisfy the overtime laws of the Fair Labor Standards Act (FLSA) as well as any Virginia overtime laws applicable to their workforces. The FLSA requires employers to pay non-exempt employees overtime for hours worked in excess of 40 hours in one week at a rate not less than time-and-a-half the regular rate of pay. If Virginia law is stricter than the FLSA, Virginia employers must satisfy the stricter requirements. For example, Virginia state law requires overtime in certain circumstances for work in excess of eight hours in a day.
For large employers and employers who perform work on military bases and other federal property in Virginia, another important consideration is the Service Contract Act of 1965 (SCA). The SCA was enacted to ensure that all contractors and subcontractors performing services on federal contracts pay their employees a prevailing wage and fringe benefits, and to ensure that employees working for these contractors receive pay and working conditions similar to those found in certain broad classes of non-federal employment. The SCA requires covered contractors to pay its employees a basic hourly wage as well as fringe benefits including health and welfare benefits. These wages and fringe benefits are tied to a wage determination issued by the US Department of Labor for the locality in which the work is performed.
Employers should also consider the Virginia Worker’s Compensation Act when hiring recruits. As an employer in Virginia, unless you are eligible for an exemption, you must carry worker’s compensation insurance for your employees, and you may be liable for the payment of worker’s compensation benefits to your employees if they are injured within the course and scope of their employment.
Workplace Policies and Protections Against Harassment and Discrimination
Section 3: Work Place Harassment and Discrimination Protections
Virginia law prohibits workplace discrimination and harassment based on race, age, sex, color, national origin, religion, pregnancy, child birth or related medical condition, sexual orientation or veteran status. All Virginia employers are obliged to maintain an environment free from unlawful discrimination and harassment. Employers should maintain a clear, fair policy regarding discrimination, harassment and retaliation. It is essential that such policy be distributed to all employees.
The Federal Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against employees based on their race, color, religion, sex, or national origin. The Equal Employment Opportunity Commission (EEOC) enforces Title VII , and the federal Age Discrimination in Employment Act (ADEA) covers individuals age 40 and older. The EEOC also enforces the ADEA. An employer in Virginia may be federally liable for committing acts of discrimination if four or more people are employed at the workplace.
Virginia law assigns the Virginia Council on Human Resource Management the responsibility to investigate employment discrimination and adjudicate employment discrimination complaints. The Council has the authority to issue regulations and guidance to assist employers in compliance with the statutory requirements. Any alleged employment discrimination must be reported orally or in writing to the Department of Human Resource Management or Office of Human Resource Management and a written complaint filed within two years within the date of the alleged unlawful action. Because the statute of limitations for filing complaints with the EEOC is 180 days and the most statutes of limitation for bringing actions in Virginia courts are two years; in order for an employee to exhaust his/her administrative remedies for Virginia law claims of employment discrimination, both complaints must be filed. Failure to exhaust administrative remedies may result in dismissal of a claim that the state statute of limitations is not the appeal filing deadline.
The EEOC has a specific website for self-assessment of risks to discrimination claims and prevention strategies.
Virginia’s At-Will Employment Policies
In Virginia, the dominant mode of employment is employment at will. Employment at will means the employee (and employer) can end the employment relationship at any time, for any lawful reason or for no reason at all. Employment at will is virtually universal throughout the Commonwealth of Virginia. Both federal and state courts apply a strong presumption that employees are hired on an at-will basis, whether or not the written or verbal agreement ever mentions at-will status. Therefore it is essential that all employers in Virginia clearly inform job applicants and employees of the at-will nature of their employment. Employers should provide this information in an employee handbook or by some clearly communicated policy and be sure to include, "employment with [Insert name of Company] is at will and may be terminated by the employee or by [Insert name of Company] at any time for any lawful reason." This statement puts the employee on notice that employment is at will in nature. It is also essential that Virginia employers carefully observe the at-will nature of employment and avoid actions that might alter the at-will status or otherwise create legal liability.
How to Ensure Compliance with Virginia Hiring Laws
It is crucial for employers to understand the significance of compliance with state and federal laws in the hiring process. The following are some practical steps that may be taken during the hiring process to assure compliance: Employers may consider obtaining the services of an employment attorney to conduct a legal audit of the hiring process and to craft the language of job postings and pre-employment applications, job status letters, offer letters, and policies designed to provide guidance on various aspects of the hiring process . In a nutshell, at least for 2012, and likely for many years beyond, the challenge for employers hiring in the Commonwealth of Virginia will be to maintain awareness in a changing legal landscape. As such, hospitality businesses hiring in Virginia must make adjustments and adaptations to their hiring policies and processes.