Recent Virginia Employment Law Changes Dramatically Increase Risk for Employees

Over the years, Virginia has been regarded as a somewhat employer-friendly state in terms of workplace regulation. Virginia courts afforded substantial protection against state law claims due to the at-will nature of most employment relationships in the Commonwealth. When employees sued employers, their lawyers relied on federal laws. Such lawsuits were filed in, or removed to, federal court where employers have a much stronger chance of avoiding a jury trial and obtaining summary judgment than they do in state court. Effective July 1, 2020, that all changed.

Although 2020 brought about numerous other legislative changes to Virginia laws, the enactment of the Virginia Values Act (VVA) leads the list of new laws imposing employment risk on Virginia employers. Without fanfare, while most employers focused their attention on pandemic-related federal legislation, Governor Northam signed the VVA into law. While the most publicized aspect of the VVA was the addition of a number of new protected classes, namely sexual orientation, gender identity, hairstyle, and lactation, federal laws mostly already covered these added protected classes and thus did not tip the scale much in terms of risk. Instead, the remedies that employees can now seek under the VVA in state court are the game-changer. Virginia employees now have a private right of action allowing them to sue their employers for unlimited damages (other than a cap of $350,000 for punitive damages) and attorney’s fees for most types of discrimination and for almost any negative employment action. While they may need to file with a state agency for investigation and possible resolution, ultimately employees will be able to file claims in state court where avoiding a jury will be very difficult even for tenuous claims.

Another new law substantially weakened the employment-at-will doctrine in Virginia. Effective July 1, Virginia employees now have a private right of action to sue their employers if they are retaliated against for reporting any violation of federal or state law to a supervisor, government body, or law enforcement official. So employees may now sue for wrongful discharge whenever they contend they were discharged because they previously complained about some purported misdeed by their employer. As with the VVA, since such lawsuits will be filed in state court, employers again may face an expensive jury trial before unsympathetic jurors.

With the VVA and other changes to Virginia’s employment laws, employment lawsuits against Virginia employers will no longer be the almost exclusive domain of federal courts. Lawyers who sue employers in Virginia will almost certainly take advantage of greater remedies under state law with a greater likelihood of avoiding summary judgment in state court. When contacted for this article, Jamie Shoemaker, a Peninsula lawyer who regularly sues employers, stated, “the Virginia Values Act is the most important development in Virginia employment law of my lifetime. It will substantially increase the number of state court claims I file.”