Labor & Employment Update: New Limitations on Nondisclosure Agreements in Virginia

Under a new Virginia law effective July 1, 2019, employers can no longer require employees or prospective employees to sign any provision in a nondisclosure or confidentiality agreement that has the effect of concealing details relating to a claim of sexual assault as defined by specific criminal statutes. The new statute declares such provisions to be against public policy, void, and unenforceable. Va. Code §40.1-28.01

Access to Employment Records

Starting July 1, 2019, employees in Virginia will be entitled to receive certain employment records upon written request to their current or former employers. Employers must provide copies of employment records reflecting an employee’s (a) dates of employment; (b) wages or salary; (c) job description and job title; and (d) any injuries sustained during the course of employment, within 30 days of receiving a written request. Exemptions are limited and a court may award damages if the employer fails to comply. Va. Code §8.01-413.1.

EEO-1 Pay-Data Reporting: EEOC to Open Reporting Tool July 15, 2019

By court edict, EEO-1 employers must submit this year for the first time, pay data for employees sorted by race, sex and ethnicity. Employers with at least 100 employees and some federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government, must submit this pay data (referenced as Component 2 of the EEO-1) in addition to the traditional accounting by number of employees working for the business sorted by 10 job categories, race/ethnicity and gender (referenced as Component 1 of the EEO-1). The deadline for filing Component 2 data is currently set for September 30, 2019, for 2017 and 2018 data. The EEOC planned to have a HelpDesk FAQ section and training materials available on its website up by the end of June, but the date keeps getting pushed out.

New Proposed Overtime Rules

Still no final word on the Department of Labor’s Wage and Hour Division’s (WHD) proposed salary level increase for the “white collar” overtime exemptions under the FLSA. The WHD proposed to increase the exemption level to $679/week ($35,308 annually), a more modest increase than the 2016 Final Rule promulgated under the Obama Administration. The proposed rule also would increase the threshold for the Highly Compensated Exemption from $100,000 to $147,414, and would allow certain non-discretionary bonuses and incentive pay to count towards 10% of the minimum salary levels. The target implementation date is January 2020. Stay tuned for updates because there may be additional changes and challenges before the proposed rule is final.

This Virginia Labor & Employment Update is intended to keep readers current on developments in the law, and is not intended to be legal advice. If you have any questions, please contact Karen S. Elliott at 804-788-7762 or kelliott@eckertseamans.com, Annemarie DiNardo Cleary at 804-788-7768 or acleary@eckertseamans.com, or any other attorney with whom you have been working.

© Eckert Seamans Cherin & Mellott, LLC, 2019, all rights reserved

 

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Karen S. Elliott

Member - Richmond