Virginia: Legislative Update
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APPLIES TO All Employers with Employees in VA |
EFFECTIVE As Indicated |
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Quick Look
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Discussion
The Virginia Legislature enacted several laws enhancing employee rights and protections. The most significant new laws are summarized below.
Non-Compete Agreement Restrictions for Low-Wage Employees
Effective July 1, 2025, SB 128 amends the existing law restricting noncompete agreements to expand the definition of “low-wage employee.” Until the amendment, the definition of a low-wage employee was an employee whose average weekly earnings were less than the average weekly wage in Virginia. Now, this definition is expanded to also include an employee “who, regardless of his average weekly earnings, is entitled to overtime compensation under the provisions of 29 U.S.C. § 207 for any hours worked in excess of 40 hours in any one workweek.” This means employers cannot enter into or enforce a noncompete agreement against employees with nonexempt classification under the Fair Labor Standards Act. The changes only apply to agreements entered into or renewed before the law’s effective date.
Unemployment Claims
Increased Penalties for Employer Failure to Timely Respond to Unemployment Claims. Effective July 1, 2025, HB 14 provides that an employer’s unemployment insurance account will not be relieved of charges related to an erroneous payment if the Virginia Employment Commission determines that the employer established a pattern of failing to respond timely or adequately to requests for information regarding the claim. A response is timely if it is made within ten calendar days after the delivery or mailing of the request for information. Delivery now also includes through the Employer Self-Service Tax System.
Assessments of penalties for failure to respond have also changed. For the first failure, the Commission will send a warning letter. The second failure will result in an assessment of a $100 civil penalty against the employer. The third failure will result in the employer waiving all rights in connection with the claim, including losing appeal rights to the Commission’s decision on the claim. An employer does have the ability to show good cause for the failure of a timely or adequate response if they demonstrate the Commission: (1) did not deliver such request to the physical or electronic mailing address specified in writing by the employer for unemployment insurance claim matters, or (2) did not deliver such request to the employer’s designated attorney or authorized representative for unemployment insurance claim matters.
Increased Unemployment Compensation Benefits. Effective January 1, 2026, HB 1766 increases an eligible individual’s weekly benefit amount an additional $52 more than the current weekly benefit amount. Annual adjustments will be made to the individual weekly benefit amount based on the average weekly wage.
Injuries to Vulnerable Victims
Effective July 1, 2025, HB 1730 amends Virginia’s employer liability law to permit employers to be held vicariously liable for personal injury or wrongful death of a “vulnerable victim” caused by their employee. The definition of a vulnerable victim is any person who is at a substantial disadvantage relative to an employee due to circumstances, including the person’s physical or mental condition or characteristics. This includes:
- A patient of a health care provider;
- A person under a disability;
- A resident of an assisted living facility;
- A passenger of a common carrier, excluding those transit services and transit facilities under the Washington Metropolitan Area Transit Authority Compact of 1966;
- A passenger of a nonemergency medical transportation carrier; or
- A business invitee of an esthetics spa or a business offering massage therapy.
To determine whether the employer was vicariously liable for the actions of its employee, a plaintiff must show:
- The employee’s tortious conduct occurred while the employee was reasonably likely to be in contact with the vulnerable victim and such conduct proximately causes personal injury to such vulnerable victim or the death of such vulnerable victim by wrongful act;
- The employer failed to exercise reasonable care to (i) prevent the employee from intentionally harming such vulnerable victim, or (ii) control the employee resulting in an unreasonable risk of a vulnerable victim suffering personal injury or death by wrongful act;
- The employer knew or should have known of the ability to control the employee; and
- The employer knew or should have known of the necessity and opportunity for exercising such control over the employee.
Workplace Violence Prevention and Reporting for Hospitals
Effective July 1, 2025, HB 2269 requires healthcare employers to create workplace violence prevention reporting systems. Workplace violence means any act of violence or threat of violence, without regard to the intent of the perpetrator, that occurs against an employee of the hospital while on the premises of such hospital and occurring during the performance of the employee’s duties. Workplace violence includes: (1) the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether physical injury is sustained, and (2) any incident involving the threat of using dangerous weapons or using common objects as weapons or to cause physical harm, regardless of whether physical injury is sustained.
Hospitals must:
- Establish a workplace violence incident reporting system, through which each hospital shall document, track, and analyze any incident of workplace violence reported.
- The analysis is to be used to make improvements in preventing workplace violence, including improvements achieved through continuing education in targeted areas, including de-escalation training, risk identification, and violence prevention planning.
- The reporting system must (i) be clearly communicated to all employees, including to any new employees at the employee orientation, and (ii) include guidelines on when and how to report incidents of workplace violence to the employer, security agencies, and appropriate law-enforcement authorities;
- Record all reported incidents of workplace violence as voluntarily reported by an employee; and
- Adopt a policy that prohibits any person from discriminating or retaliating against any employee of the hospital for reporting to, or seeking assistance or intervention from, the employer, security agencies, law-enforcement authorities, local emergency services organizations, government agencies, or others participating in any incident investigation.
Hospital employers’ systems must document, track and analyze the following aspects of any reported incidents of workplace violence:
- The date and time of the incident;
- A description of the incident, including the job titles of the affected employee;
- Whether the perpetrator was a patient, visitor, employee, or other person;
- A description of where the incident occurred;
- Information relating the type of incident, including whether the incident involved (i) a physical attack without a weapon; (ii) an attack with a weapon or object; (iii) a threat of physical force or use of a weapon or other object with the intent to cause bodily harm; (iv) sexual assault or the threat of sexual assault; or (v) anything else not listed above;
- The response to and any consequences of the incident, including (i) whether security or law enforcement was contacted and, if so, their response, and (ii) whether the incident resulted in any change to hospital policy; and
- Information about the individual who completed the report, including such individual’s name, job title, and the date of completion.
The above data collected must be reported to the chief medical officer and the chief nursing officer on a quarterly basis and a report on the number of incidents voluntarily reported by an employee sent to the Department of Health annually.
Content Creators and Child Labor Protections
Effective July 1, 2025, HB 2401 requires children under age 16 engaging in content creation to be compensated by the content creator. A content creator is defined as an individual or individuals 18 years of age or older, including family members, who create video content performed in Virginia in exchange for compensation. It does not include a child who produces their own video content.
A child under the age of 16 is considered to be engaged in the work of content creation if during the previous 12-month period: (1) at least 30% of the content creator’s compensated video content produced within a 30-day period includes the likeness, name or photograph of the child; and (2) the number of views received per video segment on any online platform met the online platform’s threshold for the generation of compensation or the content creator received actual compensation for video content equal to or greater than $0.10 per view. The compensation is to be set aside in a trust account to be preserved for the benefit of the child upon turning 18 years old or having been declared emancipated.
Content creators who feature a child under the age of 16 engaged in the work of content creation have to maintain records of the following and provide them to the child and the holder of their trust account:
- The name and documentary proof of the age of the child engaged in the work of content creation;
- The number of videos that generated compensation during the reporting period;
- The total number of minutes of the video content that the content creator received compensation for during the reporting period;
- The total number of minutes each child was featured in video content during the reporting period;
- The total compensation generated from video content featuring a child during the reporting period; and
- The amount deposited into the trust account for the benefit of the child engaged in the work of content creation.
Minors Permitted to Work in Barbershop or Salon
Effective July 1, 2025 , HB 1667 amends Virginia’s child labor law to allow children age 16 years or older to serve in a licensed barbershop or cosmetology salon as a registered apprentice, as part of a work-training program administered under the rules of the state Board of Education, or if they have obtained a cosmetology or barber license from the Board for Barbers and Cosmetology.
Action Items
- Review noncompete agreements with legal counsel.
- Provide a timely response to inquiries from the Virginia Employment Commission regarding unemployment claims.
- Consult with legal counsel on claims involving injuries to third parties caused by employees.
- Implement workplace violence prevention and reporting requirements, if applicable.
- Compensate children under age 16 used in video content creation in accordance with the requirements, if applicable.
- Review the hiring of children age 16 years or older in licensed barbershop or cosmetology salon in accordance with the requirements, if applicable.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase