Code of Virginia

Code of Virginia
Title 40.1. Labor and Employment
10/24/2020

Chapter 3. Protection of Employees.

Article 1. General Provisions.

§ 40.1-22. Safety and Health Codes Commission continued as Safety and Health Codes Board.

(1) The Safety and Health Codes Commission is continued and shall hereafter be known as the Safety and Health Codes Board. The Board shall consist of fourteen members, twelve of whom shall be appointed by the Governor. One member shall, by reason of previous vocation, employment or affiliation, be chosen to represent labor in the manufacturing industry; one member shall, by reason of previous vocation, employment or affiliation, be chosen to represent labor in the construction industry; one member shall, by reason of previous vocation, employment or affiliation, be chosen to represent industrial employers; one member shall be chosen from and be a representative of the general public; one member shall be a representative of agricultural employers; one member shall, by reason of previous vocation, employment or affiliation, be chosen to represent agricultural employees; one member shall, by reason of previous vocation, employment or affiliation, be chosen to represent construction industry employers; one member shall be a representative of an insurance company; one member shall be a labor representative from the boiler pressure vessel industry; one member shall be a labor representative knowledgeable in chemicals and toxic substances; one member shall be an employer representative of the boiler pressure vessel industry; one member shall be an industrial representative knowledgeable in chemical and toxic substances, and the Director of the Department of Environmental Quality or his duly authorized representative shall be a member ex officio with full membership status. The Commissioner of Health or his duly authorized representative shall also be a member ex officio with full membership status.

(2) The first appointive members shall be appointed as follows: one for a term of four years, one for a term of three years, one for a term of two years, and one for a term of one year. Of the members appointed to represent the construction industry, one shall be appointed for the term of two years and one shall be appointed for the term of four years. Succeeding appointments shall be for terms of four years each but other vacancies shall be filled by appointment for the unexpired term.

(3) The Board shall annually select a chairman from its members. The Board shall meet at least once every six months; other meetings may be held upon call of the chairman or any three members of the Board. Five members of the Board shall constitute a quorum.

(4) The Board shall study and investigate all phases of safety in business establishments, the application of this title thereto, and shall serve as advisor to the Commissioner.

(5) The Board, with the advice of the Commissioner, is hereby authorized to adopt, alter, amend, or repeal rules and regulations to further, protect and promote the safety and health of employees in places of employment over which it has jurisdiction and to effect compliance with the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596), and as may be necessary to carry out its functions established under this title. The Commissioner shall enforce such rules and regulations. All such rules and regulations shall be designed to protect and promote the safety and health of such employees. In making such rules and regulations to protect the occupational safety and health of employees, the Board shall adopt the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. However, such standards shall be at least as stringent as the standards promulgated by the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596). In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws. Whenever practicable, the standard promulgated shall be expressed in terms of objective criteria and of the performance desired. Such standards when applicable to products which are distributed in interstate commerce shall be the same as federal standards unless deviations are required by compelling local conditions and do not unduly burden interstate commerce.

(6) Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 shall apply to the adoption of rules and regulations under this section and to proceedings before the Board.

(6a) The Board shall provide, without regard to the requirements of Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2, for an emergency temporary standard to take immediate effect upon publication in a newspaper of general circulation, published in the City of Richmond, Virginia, if it determines that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger. The publication mentioned herein shall constitute notice that the Board intends to adopt such standard within a period of six months. The Board by similar publication shall prior to the expiration of six months give notice of the time and date of, and conduct a hearing on, the adoption of a permanent standard. The emergency temporary standard shall expire within six months or when superseded by a permanent standard, whichever occurs first, or when repealed by the Board.

(7) Any person who may be adversely affected by a standard issued under this title may challenge the validity of such standard in the Circuit Court of the City of Richmond by declaratory judgment. The determination of the Safety and Health Codes Board shall be conclusive if supported by substantial evidence in the record considered as a whole. Adoption of a federal occupational safety and health standard shall be deemed to be sufficient evidence to support promulgation of such standard. The filing of a petition for declaratory judgment shall not operate as a stay of the standard unless the court issues a preliminary injunction.

Code 1950, § 40-20; 1962, c. 66; 1968, c. 272; 1970, cc. 321, 649; 1972, c. 567; 1973, c. 425; 1974, c. 195; 1976, c. 607; 1979, c. 656; 1980, c. 728; 1984, c. 590; 1985, c. 448; 1987, c. 165; 1988, c. 467.

§ 40.1-22.1. Governor authorized to enter certain agreements.

The Governor of Virginia is hereby authorized to enter into:

1. Such agreements with the United States Occupational Safety and Health Administration as are necessary to provide training for the employees of the Virginia Department of Labor and Industry and other appropriate agencies of the Commonwealth to assist in the enforcement of Public Law 91-596.

2. Reciprocal agreements with the appropriate authorities of any state within the United States and of the District of Columbia, with respect to the collection of claims for wages and other demands upon claims filed with the Department of Labor and Industry.

1976, c. 607; 1997, c. 282.

§ 40.1-23. Repealed.

Repealed by Acts 1988, c. 340, effective January 1, 1989.

§ 40.1-26. Repealed.

Repealed by Acts 1979, c. 631.

§ 40.1-27. Preventing employment by others of former employee.

No person doing business in this Commonwealth, or any agent or attorney of such person after having discharged any employee from the service of such person or after any employee shall have voluntarily left the service of such person shall willfully and maliciously prevent or attempt to prevent by word or writing, directly or indirectly, such discharged employee or such employee who has voluntarily left from obtaining employment with any other person. For violation of this section the offender shall be guilty of a misdemeanor and shall, on conviction thereof, be fined not less than $100 nor more than $500. But this section shall not be construed as prohibiting any person from giving on application for any other person a truthful statement of the reason for such discharge, or a truthful statement concerning the character, industry and ability of such person who has voluntarily left.

Code 1950, § 40-22; 1970, c. 321.

§ 40.1-27.1. Discharge of employee for absence due to work-related injury prohibited.

It shall be an unfair employment practice for an employer who has established an employment policy of discharging employees who are absent from work for a specified number of days to include in the computation of an employee's work absence record any day that such employee is absent from work due to a compensable absence under Title 65.2; provided, that such compensable absences can be calculated into an employee's work record for purposes of discharge after all steps of the excessive absenteeism policy have been exhausted. An employer shall not be held in violation of this section if the employee's absence exceeds six months or if the employer's circumstances have changed during such employee's absence so as to make it impossible or unreasonable not to discharge such employee.

1989, c. 572.

§ 40.1-27.2. Preference for veterans and spouses.

A. As used in this section, unless the context requires a different meaning:

"Disabled veteran" means a veteran who has been found by the U.S. Department of Veterans Affairs or by the retirement board of one of the several branches of the armed forces to have a compensable service-connected permanent and total disability.

"Veteran" has the same meaning ascribed to such term in § 2.2-2903.

B. An employer may grant preference in hiring and promotion to a veteran or the spouse of a disabled veteran.

C. Granting preference under subsection B does not violate any local or state equal employment opportunity law.

2014, c. 740.

§ 40.1-27.3. Retaliatory action against employee prohibited.

A. An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee's compensation, terms, conditions, location, or privileges of employment, because the employee:

1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;

2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;

3. Refuses to engage in a criminal act that would subject the employee to criminal liability;

4. Refuses an employer's order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or

5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

B. This section does not:

1. Authorize an employee to make a disclosure of data otherwise protected by law or any legal privilege;

2. Permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth; or

3. Permit disclosures that would violate federal or state law or diminish or impair the rights of any person to the continued protection of confidentiality of communications provided by common law.

C. A person who alleges a violation of this section may bring a civil action in a court of competent jurisdiction within one year of the employer's prohibited retaliatory action. The court may order as a remedy to the employee (i) an injunction to restrain continued violation of this section, (ii) the reinstatement of the employee to the same position held before the retaliatory action or to an equivalent position, and (iii) compensation for lost wages, benefits, and other remuneration, together with interest thereon, as well as reasonable attorney fees and costs.

2020, c. 1136.

§ 40.1-28. Unlawful to require payment for medical examination as condition of employment.

It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment.

Any employer who violates the provisions of this section shall be subject to a civil penalty not to exceed $100 for each violation. The Commissioner shall notify any employer who he alleges has violated any provision of this section by certified mail or overnight delivery service. Such notice shall contain a description of the alleged violation. Within 21 days of receipt of notice of the alleged violation, the employer may request an informal conference regarding such violation with the Commissioner. If the employer fails to contest the violation by requesting such an informal conference within 21 days following its receipt of the notice of the alleged violation, the violation and proposed penalty will become a final order of the Commissioner and not subject to review by any court or agency except upon a showing of good cause. Such informal conference shall result in a decision by the Commissioner that will be appealable to the appropriate circuit court. The Department shall send a copy of the Commissioner's decision to the employer by certified mail or overnight delivery service. The employer may file a notice of an appeal only within 30 days from the receipt of the decision. The appeal shall be on the agency record. With respect to matters of law, the burden shall be on the party seeking review to designate and demonstrate an error of law subject to review by the court. With respect to issues of fact, the duty of the court shall be limited to ascertaining whether there was substantial evidence in the record to reasonably support the Commissioner's findings of fact.

Civil penalties owed under this section shall be paid to the Commissioner for deposit into the general fund of the Treasury of the Commonwealth. The Commissioner shall prescribe procedures for the payment of proposed penalties which are not contested by employers.

Code 1950, § 40-22.1; 1952, c. 525; 1962, c. 66; 1970, c. 321; 1973, c. 425; 1982, c. 84; 2015, c. 285.

§ 40.1-28.01. Nondisclosure or confidentiality agreement; provisions regarding sexual assault; condition of employment.

A. No employer shall require an employee or a prospective employee to execute or renew any provision in a nondisclosure or confidentiality agreement that has the purpose or effect of concealing the details relating to a claim of sexual assault pursuant to § 18.2-61, 18.2-67.1, 18.2-67.3, or 18.2-67.4 as a condition of employment. Any such provision is against public policy and is void and unenforceable.

B. This section shall in no way limit other grounds that exist at law or in equity for the unenforceability of any such agreement or any provision of such agreement.

2019, c. 131.

§ 40.1-28.1. Repealed.

Repealed by Acts 2005, c. 823, effective July 1, 2005.

§ 40.1-28.5. Repealed.

Repealed by Acts 2004, c. 608.

§ 40.1-28.6. Equal pay irrespective of sex.

No employer having employees shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this section shall be deemed to be unpaid wages or unpaid overtime compensation and the employee whose wages have been wrongfully withheld in violation of this section shall have a right of action therefor to recover damages to the extent of two times the amount of wages so withheld.

This section shall not apply to employers covered by the Fair Labor Standards Act of 1938 as amended. Every action under this section shall be brought within two years next after the right to bring the same shall have accrued; provided, however, that nothing herein shall be construed to give rise to a cause of action for work performed prior to July 1, 1974.

1974, c. 405.

§ 40.1-28.7. Repealed.

Repealed by Acts 1985, c. 421.

§ 40.1-28.7:1. Genetic testing or genetic characteristics as a condition of employment.

A. No employer shall:

1. Request, require, solicit or administer a genetic test, as defined in § 38.2-508.4, to any person as a condition of employment; or

2. Refuse to hire, fail to promote, discharge or otherwise adversely affect any terms or conditions of employment of any employee or prospective employee solely on the basis of a genetic characteristic, as defined in § 38.2-508.4, or the results of a genetic test, regardless of how the employer obtained such information or results. Nothing in this section shall preclude the use of information related to a criminal investigation.

B. The employee may bring an action in a court of competent jurisdiction over the employer who took adverse action against the employee in violation of this section. Any such action shall be brought within 180 days from the date of the adverse action. The court may, in its discretion, award actual or punitive damages, including back pay with interest at the judgment rate as provided in § 6.2-302, or injunctive relief.

C. Nothing in this section shall be construed to require the Department of Labor and Industry to conduct any investigations or enforcement actions.

D. As used in subdivision A 2 of this section, "terms and conditions of employment" shall not include any long term care, life or disability insurance policy.

2002, cc. 565, 659.

§ 40.1-28.7:2. Employers to allow crime victims leave to attend criminal proceedings.

A. As used in this section:

"Criminal proceedings" means a proceeding at which the victim has the right or opportunity to appear involving a crime against the victim, including:

1. The initial appearance of the person suspected of committing the criminal offense against the victim;

2. Any proceeding in which the court considers the post-arrest release of the person accused of committing a criminal offense against the victim or the conditions of that release;

3. Any proceeding in which a negotiated plea for the person accused of committing the criminal offense against the victim will be presented to the court;

4. Any sentencing proceeding;

5. Any proceeding in which postconviction release from confinement is considered;

6. Any probation revocation disposition proceeding or any proceeding in which the court is requested to terminate the probation of a person who is convicted of committing a criminal offense against the victim; or

7. Any proceeding in which the court is requested to modify the terms of probation or intensive probation of a person if the modification will substantially affect the person's contact with or safety of the victim or if the modification involves restitution or incarceration status.

"Undue hardship" means a significant difficulty and expense to a business and includes the consideration of the size of the employer's business and the employer's critical need of the employee.

"Victim" has the same meaning ascribed to the term in § 19.2-11.01.

B. Every employer shall allow an employee who is a victim of a crime to leave work to be present at all criminal proceedings relating to a crime against the employee, as long as the employee has provided the employer with a copy of the form provided to the employee by the law-enforcement agency pursuant to subsection A of § 19.2-11.01 and, if applicable, provided the employer a copy of the notice of each scheduled criminal proceeding that is provided to the employee as victim. However, an employer may limit the leave provided under this section if the employee's leave creates an undue hardship to the employer's business.

C. An employer shall not dismiss an employee who is a victim of a crime because the employee exercises the right to leave work pursuant to subsection B.

D. An employer is not required to compensate an employee who is a victim of a crime when the employee leaves work pursuant to subsection B.

E. An employer shall not refuse to hire or employ, to bar or to discharge from employment, or to discriminate against, an individual in compensation or other terms, conditions, or privileges of employment because the individual leaves work to attend a criminal proceeding pursuant to this section.

2007, c. 423.

§ 40.1-28.7:3. Earned income tax credit; employer notice to employee.

Every employer shall post in the same location where other employee notices required by state or federal law are posted any notice provided by the Virginia Department of Social Services that informs employees that they may be eligible for federal and state earned income tax credits and may apply for the credit on their tax returns or receive the credit in advance payments during the year.

2009, c. 698.

§ 40.1-28.7:4. Release of employee's personal identifying information.

A. As used in this section, "personal identifying information" means any of the following items of information about a current or former employee: home telephone number, mobile telephone number, email address, shift times, or work schedule.

B. An employer shall not, unless an exemption described in subsection C applies, be required to release, communicate, or distribute to a third party any current or former employee's personal identifying information.

C. The provisions of subsection B shall not apply to a release, communication, or distribution of personal identifying information that is:

1. Required pursuant to any applicable provision of federal law that preempts the provisions of this section or of state law that requires an employer to release, communicate, or distribute personal identifying information;

2. Ordered by a court of competent jurisdiction;

3. Required pursuant to a warrant issued by a judicial officer; or

4. Required by a subpoena issued in a pending civil or criminal case, or by discovery in a civil case.

2013, c. 495.

§ 40.1-28.7:5. Social media accounts of current and prospective employees.

A. As used in this section:

"Employer" includes, in addition to the persons enumerated in the definition of employer in § 40.1-2, (i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer.

"Social media account" means a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations. "Social media account" does not include an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer's email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks.

B. An employer shall not require a current or prospective employee to:

1. Disclose the username and password to the current or prospective employee's social media account; or

2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee's social media account.

C. If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee's social media account.

D. An employer shall not:

1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or

2. Fail or refuse to hire a prospective employee for exercising his rights under this section.

E. This section does not prohibit an employer from viewing information about a current or prospective employee that is publicly available.

F. Nothing in this section:

1. Prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or

2. Affects an employer's existing rights or obligations to request an employee to disclose his username and password for the purpose of accessing a social media account if the employee's social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee's violation of federal, state, or local laws or regulations or of the employer's written policies. If an employer exercises its rights under this subdivision, the employee's username and password shall only be used for the purpose of the formal investigation or a related proceeding.

2015, c. 576.

§ 40.1-28.7:6. Employers to allow leave for volunteer members of Civil Air Patrol; civil remedy.

A. Any employee who is a volunteer member of the Civil Air Patrol shall be entitled to leaves of absence from his employment without loss of seniority, accrued leave, benefits, or efficiency rating on all days during which such employee is (i) engaged in training for emergency missions with the Civil Air Patrol, not to exceed 10 workdays per federal fiscal year, or (ii) responding to an emergency mission as a Civil Air Patrol volunteer, not to exceed 30 workdays per federal fiscal year.

B. Any employee requesting leave pursuant to this section shall provide (i) certification that the employee has been authorized by the United States Air Force, the Governor, or a department, division, agency, or political subdivision of the state to respond to or train for an emergency mission and (ii) verification from the Civil Air Patrol of the emergency need of the employee's volunteer service.

C. An employer may treat leaves of absence pursuant to this section as unpaid leave. No employer shall require an employee to exhaust any other leave to which the employee is entitled prior to such leaves of absence. Nothing in this subsection shall be construed to prevent an employer from providing paid leave during such leaves of absence.

D. Any employee aggrieved by a violation of any provision of this section may bring a civil action to enforce such provision. Any employee who is successful in such action shall be entitled to recover only lost wages, reasonable attorney fees, and court costs incurred in such action.

2018, c. 277.

§ 40.1-28.7:7. Misclassification of workers.

A. An individual who has not been properly classified as an employee may bring a civil action for damages against his employer for failing to properly classify the employee if the employer had knowledge of the individual's misclassification. An individual's representative may bring the action on behalf of the individual. If the court finds that the employer has not properly classified the individual as an employee, the court may award the individual damages in the amount of any wages, salary, employment benefits, including expenses incurred by the employee that would otherwise have been covered by insurance, or other compensation lost to the individual, a reasonable attorney fee, and the costs incurred by the individual in bringing the action.

B. In a proceeding under subsection A, an individual who performs services for a person for remuneration shall be presumed to be an employee of the person that paid such remuneration, and the person that paid such remuneration shall be presumed to be the employer of the individual who was paid for performing the services, unless it is shown that the individual is an independent contractor as determined under the Internal Revenue Service guidelines.

C. As used in this section, "Internal Revenue Service guidelines" means the most recent version of the guidelines published by the Internal Revenue Service for evaluating independent contractor status, including its interpretation of common law doctrine on independent contractors, and any regulations that the Internal Revenue Service may promulgate regarding determining whether an employee is an independent contractor, including 26 C.F.R. § 31.3121(d)-1.

2020, cc. 203, 381.

§ 40.1-28.7:8. Covenants not to compete prohibited as to low-wage employees; civil penalty.

A. As used in this section:

"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. A "covenant not to compete" shall not restrict an employee from providing a service to a customer or client of the employer if the employee does not initiate contact with or solicit the customer or client.

"Low-wage employee" means an employee whose average weekly earnings, calculated by dividing the employee's earnings during the period of 52 weeks immediately preceding the date of termination of employment by 52, or if an employee worked fewer than 52 weeks, by the number of weeks that the employee was actually paid during the 52-week period, are less than the average weekly wage of the Commonwealth as determined pursuant to subsection B of § 65.2-500. "Low-wage employee" includes interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience. "Low-wage employee" also includes an individual who has independently contracted with another person to perform services independent of an employment relationship and who is compensated for such services by such person at an hourly rate that is less than the median hourly wage for the Commonwealth for all occupations as reported, for the preceding year, by the Bureau of Labor Statistics of the U.S. Department of Labor. For the purposes of this section, "low-wage employee" shall not include any employee whose earnings are derived, in whole or in predominant part, from sales commissions, incentives, or bonuses paid to the employee by the employer.

B. No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee.

C. Nothing in this section shall serve to limit the creation or application of nondisclosure agreements intended to prohibit the taking, misappropriating, threating to misappropriate, or sharing of certain information, including trade secrets, as defined in § 59.1-336, and proprietary or confidential information.

D. A low-wage employee may bring a civil action in a court of competent jurisdiction against any former employer or other person that attempts to enforce a covenant not to compete against such employee in violation of this section. An action under this section shall be brought within two years of the latter of (i) the date the covenant not to compete was signed, (ii) the date the low-wage employee learns of the covenant not to compete, (iii) the date the employment relationship is terminated, or (iv) the date the employer takes any step to enforce the covenant not to compete. The court shall have jurisdiction to void any covenant not to compete with a low-wage employee and to order all appropriate relief, including enjoining the conduct of any person or employer, ordering payment of liquidated damages, and awarding lost compensation, damages, and reasonable attorney fees and costs. No employer may discharge, threaten, or otherwise discriminate or retaliate against a low-wage employee for bringing a civil action pursuant to this section.

E. Any employer that violates the provisions of subsection B as determined by the Commissioner shall be subject to a civil penalty of $10,000 for each violation. Civil penalties owed under this subsection shall be paid to the Commissioner for deposit in the general fund.

F. If the court finds a violation of the provisions of this section, the plaintiff shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorney fees from the former employer or other person who attempts to enforce a covenant not to compete against such plaintiff.

G. Every employer shall post a copy of this section or a summary approved by the Department in the same location where other employee notices required by state or federal law are posted. An employer that fails to post a copy of this section or an approved summary of this section shall be issued by the Department a written warning for the first violation, shall be subject to a civil penalty not to exceed $250 for a second violation, and shall be subject to a civil penalty not to exceed $1,000 for a third and each subsequent violation as determined by the Commissioner. Civil penalties owed under this subsection shall be paid to the Commissioner for deposit in the general fund.

The Commissioner shall prescribe procedures for the payment of proposed assessments of penalties that are not contested by employers. Such procedures shall include provisions for an employer to consent to abatement of the alleged violation and to pay a proposed penalty or a negotiated sum in lieu of such penalty without admission of any civil liability arising from such alleged violation.

2020, cc. 948, 949, § 40.1-28.7:7.

§ 40.1-28.7:9. Limiting employees' sharing wage information with other persons prohibited; civil penalty.

A. 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 provisions of this section shall not apply to employees who have access to the compensation information of other employees or applicants for employment as part of their essential job functions who disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with a legal duty to furnish information.

B. Any employer that violates the provisions of this section shall be subject to a civil penalty not to exceed $100 for each violation. The Commissioner shall notify any employer who he alleges has violated any provision of this section by certified mail. Such notice shall contain a description of the alleged violation. Within 15 days of receipt of notice of the alleged violation, the employer may request an informal conference regarding such violation with the Commissioner. In determining the amount of any penalty to be imposed, the Commissioner shall consider the size of the business of the employer charged and the gravity of the violation. The decision of the Commissioner shall be final. Civil penalties under this section shall be assessed by the Commissioner and paid to the Literary Fund. The Commissioner shall prescribe procedures for the payment of proposed penalties that are not contested by employers.

C. The Commissioner or his authorized representative shall have the right to petition a circuit court for injunctive or such other relief as may be necessary for enforcement of this section.

2020, c. 1210, § 40.1-28.7:7.

Article 1.1. Virginia Minimum Wage Act.

§ 40.1-28.8. Short title.

This article shall be known as the Virginia Minimum Wage Act.

1975, c. 530.

§ 40.1-28.9. Definitions; determining wage of tipped employee.

A. As used in this article:

"Adjusted state hourly minimum wage" means the amount established by the Commissioner pursuant to subsection H of § 40.1-28.10.

"Domestic service" means services related to the care of an individual in a private home or the maintenance of a private home or its premises, on a permanent or temporary basis, including services performed by individuals such as companions, cooks, waiters, butlers, maids, valets, and chauffeurs.

"Employee" includes any individual employed by an employer. "Employee" includes a home care provider. "Employee" does not include the following:

1. Any person employed as a farm laborer or farm employee;

2. Any person engaged in the activities of an educational, charitable, religious, or nonprofit organization where the relationship of employer-employee does not, in fact, exist or where the services rendered to such organization are on a voluntary basis;

3. Caddies on golf courses;

4. Traveling salesmen or outside salesmen working on a commission basis; taxicab drivers and operators;

5. Any person under the age of 18 in the employ of his parent or legal guardian;

6. Any person confined in any penal or corrective institution of the Commonwealth or any of its political subdivisions or admitted to a state hospital or training center operated by the Department of Behavioral Health and Developmental Services;

7. Any person employed by a summer camp for boys, girls, or both boys and girls;

8. Any person under the age of 16, regardless of by whom employed;

9. Any person who is paid pursuant to 29 U.S.C. § 214(c) of the Fair Labor Standards Act of 1938, as amended;

10. Students participating in a bona fide educational program;

11. Any person who is less than 18 years of age and who is currently enrolled on a full-time basis in any secondary school, institution of higher education, or trade school, provided that the person is not employed more than 20 hours per week;

12. Any person of any age who is currently enrolled on a full-time basis in any secondary school, institution of higher education, or trade school and is in a work-study program or its equivalent at the institution at which he is enrolled as a student;

13. Any person who works as a babysitter for fewer than 10 hours per week;

14. Any person participating as an au pair in the U.S. Department of State's Exchange Visitor Program governed by 22 C.F.R. § 62.31;

15. Any individual employed as a temporary foreign worker as governed by 20 C.F.R. Part 655; and

16. Any person who is exempt from the federal minimum wage pursuant to 29 U.S.C. § 213(a)(3).

"Employer" includes any individual, partnership, association, corporation, or business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" includes the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body.

"Federal minimum wage" means the minimum wage or, if applicable, the federal training wage prescribed by the U.S. Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

"Home care provider" means an individual who provides (i) home health services, including services provided by or under the direct supervision of any health care professional under a medical plan of care in a patient's residence on a visit or hourly basis to patients who have or are at risk of injury, illness, or a disabling condition and require short-term or long-term interventions, or (ii) personal care services, including assistance in personal care to include activities of a daily living provided in an individual's residence on a visit or hourly basis to individuals who have or are at risk of an illness, injury, or disabling condition.

"Tipped employee" means an employee who in the course of employment customarily and regularly receives tips totaling more than $30 each month from persons other than the employee's employer.

"Wages" means legal tender of the United States or checks or drafts on banks negotiable into cash on demand or upon acceptance at full value. "Wages" includes the reasonable cost to the employer of furnishing meals and lodging to an employee if such board or lodging is customarily furnished by the employer and used by the employee.

B. In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on account of tips by an amount determined by the employer, except in the case of an employee who establishes by clear and convincing evidence that the actual amount of tips received by him was less than the amount determined by the employer. In such case, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount. An employer shall not classify an individual as a tipped employee if the individual is prohibited by applicable federal or state law or regulation from soliciting tips.

1975, c. 530; 1976, c. 442; 1977, c. 432; 2007, cc. 816, 832; 2012, cc. 476, 507; 2014, c. 734; 2019, cc. 330, 331; 2020, cc. 1145, 1146, 1147, 1204, 1242.

§ 40.1-28.10. Minimum wages.

A. 1. Prior to May 1, 2021, every employer shall pay to each of its employees wages at a rate not less than the federal minimum wage.

2. Beginning May 1, 2021, every employer shall pay to each of his employees at a rate not less than the federal minimum wage or 75 percent of the Virginia minimum wage provided for in this section, whichever is greater. For the purposes of this subdivision "employee" means any person or individual who is enrolled in an established employer on-the-job or other training program for a period not to exceed 90 days which meets standards set by regulations adopted by the Commissioner.

B. From May 1, 2021, until January 1, 2022, every employer shall pay to each of its employees wages at a rate not less than the greater of (i) $9.50 per hour or (ii) the federal minimum wage.

C. From January 1, 2022, until January 1, 2023, every employer shall pay to each of its employees wages at a rate not less than the greater of (i) $11.00 per hour or (ii) the federal minimum wage.

D. From January 1, 2023, until January 1, 2025, every employer shall pay to each of its employees wages at a rate not less than the greater of (i) $12.00 per hour or (ii) the federal minimum wage.

E. (For effective date, see Acts 2020, cc. 1204 and 1242) From January 1, 2025, until January 1, 2026, every employer shall pay to each of its employees wages at a rate not less than the greater of (i) $13.50 per hour or (ii) the federal minimum wage.

F. (For effective date, see Acts 2020, cc. 1204 and 1242) From January 1, 2026, until January 1, 2027, every employer shall pay to each of its employees wages at a rate not less than the greater of (i) $15.00 per hour or (ii) the federal minimum wage.

G. From and after January 1, 2027, every employer shall pay to each of his employees wages at a rate not less than the greater of (i) the adjusted state hourly minimum wage or (ii) the federal minimum wage.

H. By October 1, 2026, and annually thereafter, the Commissioner shall establish the adjusted state hourly minimum wage that shall be in effect during the 12-month period commencing on the following January 1. The Commissioner shall set the adjusted state hourly minimum wage at the sum of (i) the amount of the state hourly minimum wage rate that is in effect on the date such adjustment is made and (ii) a percentage of the amount described in clause (i) that is equal to the percentage by which the United States Average Consumer Price Index for all items, all urban consumers (CPI-U), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or a successor index as calculated by the U.S. Department of Labor, has increased during the most recent calendar year for which such information is available. The amount of each annual adjustment shall not be less than zero.

1975, c. 530; 1976, c. 736; 1978, c. 371; 1980, c. 532; 1991, cc. 547, 596; 1997, c. 544; 2020, cc. 1204, 1242.

§ 40.1-28.11. Penalties.

Whoever knowingly and intentionally violates any provisions of this article shall be punished by a fine of not less than $10 nor more than $200.

1975, c. 530.

§ 40.1-28.12. Employee's remedies.

Any employer who violates the minimum wage requirements of this law shall be liable to the employee or employees affected in the amount of the unpaid minimum wages, plus interest at eight per centum per annum upon such unpaid wages as may be due the plaintiff, said interest to be awarded from the date or dates said wages were due the employee or employees. The court may, in addition to any judgment awarded to the employee or employees, require defendant to pay reasonable attorney's fees incurred by the employee or employees.

1975, c. 530.

Article 2. Pay; Assignment of Wages; Sale of Merchandise to Employees.

§ 40.1-29. Time and medium of payment; withholding wages; written statement of earnings; agreement for forfeiture of wages; proceedings to enforce compliance; penalties.

A. All employers operating a business shall establish regular pay periods and rates of pay for employees except executive personnel. All such employers shall pay salaried employees at least once each month and employees paid on an hourly rate at least once every two weeks or twice in each month, except that (i) a student who is currently enrolled in a work-study program or its equivalent administered by any secondary school, institution of higher education, or trade school, and (ii) employees whose weekly wages total more than 150 percent of the average weekly wage of the Commonwealth as defined in § 65.2-500, upon agreement by each affected employee, may be paid once each month if the institution or employer so chooses. Upon termination of employment an employee shall be paid all wages or salaries due him for work performed prior thereto; such payment shall be made on or before the date on which he would have been paid for such work had his employment not been terminated.

B. Payment of wages or salaries shall be (i) in lawful money of the United States, (ii) by check payable at face value upon demand in lawful money of the United States, (iii) by electronic automated fund transfer in lawful money of the United States into an account in the name of the employee at a financial institution designated by the employee, or (iv) by credit to a prepaid debit card or card account from which the employee is able to withdraw or transfer funds with full written disclosure by the employer of any applicable fees and affirmative consent thereto by the employee. However, an employer that elects not to pay wages or salaries in accordance with clause (i) or (ii) to an employee who is hired after January 1, 2010, shall be permitted to pay wages or salaries by credit to a prepaid debit card or card account in accordance with clause (iv), even though such employee has not affirmatively consented thereto, if the employee fails to designate an account at a financial institution in accordance with clause (iii) and the employer arranges for such card or card account to be issued through a network system through which the employee shall have the ability to make at least one free withdrawal or transfer per pay period, which withdrawal may be for any sum in such card or card account as the employee may elect, using such card or card account at financial institutions participating in such network system.

C. No employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without the written and signed authorization of the employee. On each regular pay date, each employer other than an employer engaged in agricultural employment including agribusiness and forestry shall provide to each employee a written statement, by a paystub or online accounting, that shows the name and address of the employer; the number of hours worked during the pay period if the employee is paid on the basis of (i) the number of hours worked or (ii) a salary that is less than the standard salary level adopted by regulation of the U.S. Department of Labor pursuant to § 13(a)(1) of the federal Fair Labor Standards Act, 29 U.S.C. § 213(a)(1), as amended, establishing an exemption from the Act's overtime premium pay requirements; the rate of pay; the gross wages earned by the employee during the pay period; and the amount and purpose of any deductions therefrom. The paystub or online accounting shall include sufficient information to enable the employee to determine how the gross and net pay were calculated. An employer engaged in agricultural employment including agribusiness and forestry, upon request of its employee, shall furnish the employee a written statement of the gross wages earned by the employee during any pay period and the amount and purpose of any deductions therefrom.

D. No employer shall require any employee, except executive personnel, to sign any contract or agreement which provides for the forfeiture of the employee's wages for time worked as a condition of employment or the continuance therein, except as otherwise provided by law.

E. An employer who willfully and with intent to defraud fails or refuses to pay wages in accordance with this section, unless the failure to pay was because of a bona fide dispute between the employer and its employee:

1. To an employee or employees is guilty of a Class 1 misdemeanor if the value of the wages earned and not paid by the employer is less than $10,000; and

2. To an employee or employees is guilty of a Class 6 felony (i) if the value of the wages earned and not paid is $10,000 or more or (ii) regardless of the value of the wages earned and not paid, if the conviction is a second or subsequent conviction under this section.

For purposes of this section, the determination as to the "value of the wages earned" shall be made by combining all wages the employer failed or refused to pay pursuant to this section.

F. The Commissioner may require a written complaint of the violation of this section and, with the written and signed consent of an employee, may institute proceedings on behalf of an employee to enforce compliance with this section, and to collect any moneys unlawfully withheld from such employee which shall be paid to the employee entitled thereto. In addition, following the issuance of a final order by the Commissioner or a court, the Commissioner may engage private counsel, approved by the Attorney General, to collect any moneys owed to the employee or the Commonwealth. Upon entry of a final order of the Commissioner, or upon entry of a judgment, against the employer, the Commissioner or the court shall assess attorney fees of one-third of the amount set forth in the final order or judgment.

G. In addition to being subject to any other penalty provided by the provisions of this section, any employer who fails to make payment of wages in accordance with subsection A shall be liable for the payment of all wages due, and an additional equal amount as liquidated damages, plus interest at an annual rate of eight percent accruing from the date the wages were due.

H. Any employer who knowingly fails to make payment of wages in accordance with subsection A shall be subject to a civil penalty not to exceed $1,000 for each violation. The Commissioner shall notify any employer that he alleges has violated any provision of this section by certified mail. Such notice shall contain a description of the alleged violation. Within 15 days of receipt of notice of the alleged violation, the employer may request an informal conference regarding such violation with the Commissioner. In determining the amount of any penalty to be imposed, the Commissioner shall consider the size of the business of the employer charged and the gravity of the violation. The decision of the Commissioner shall be final. Civil penalties owed under this section shall be paid to the Commissioner for deposit into the general fund of the State Treasurer. The Commissioner shall prescribe procedures for the payment of proposed assessments of penalties that are not contested by employers. Such procedures shall include provisions for an employer to consent to abatement of the alleged violation and pay a proposed penalty or a negotiated sum in lieu of such penalty without admission of any civil liability arising from such alleged violation.

I. Final orders of the Commissioner, the general district courts, or the circuit courts may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner or the court as appropriate.

J. In addition to any civil or criminal penalty provided by this section, and without regard to any exhaustion of alternative administrative remedies provided for in this section, if an employer fails to pay wages to an employee in accordance with this section, the employee may bring an action, individually, jointly, with other aggrieved employees, or on behalf of similarly situated employees as a collective action consistent with the collective action procedures of the Fair Labor Standards Act, 29 U.S.C. § 216(b), against the employer in a court of competent jurisdiction to recover payment of the wages, and the court shall award the wages owed, an additional equal amount as liquidated damages, plus prejudgment interest thereon as provided in subsection G, and reasonable attorney fees and costs. If the court finds that the employer knowingly failed to pay wages to an employee in accordance with this section, the court shall award the employee an amount equal to triple the amount of wages due and reasonable attorney fees and costs.

K. As used in this section, a person acts "knowingly" if the person, with respect to information, (i) has actual knowledge of the information, (ii) acts in deliberate ignorance of the truth or falsity of the information, or (iii) acts in reckless disregard of the truth or falsity of the information. Establishing that a person acted knowingly shall not require proof of specific intent to defraud.

L. An action under this section shall be commenced within three years after the cause of action accrued. The period for filing is tolled upon the filing of an administrative action under subsection F until the employee has been informed that the action has been resolved or until the employee has withdrawn the complaint, whichever is sooner.

Code 1950, § 40-24; 1962, c. 66; 1966, c. 88; 1968, c. 262; 1970, c. 321; 1972, c. 848; 1977, c. 308; 1979, c. 50; 1989, c. 583; 1991, c. 499; 1993, c. 600; 2002, c. 321; 2003, c. 638; 2004, c. 358; 2005, cc. 595, 851; 2009, c. 728; 2016, c. 593; 2019, cc. 836, 845; 2020, cc. 202, 868, 1038.

§ 40.1-29.1. Investigations of employers for nonpayment of wages.

If in the course of an investigation of a complaint of an employer's failure or refusal to pay wages in accordance with the requirements of § 40.1-29, the Commissioner acquires information creating a reasonable belief that other employees of the same employer may not have been paid wages in accordance with such requirements, the Commissioner shall have the authority to investigate whether the employer has failed or refused to make any required payment of wages to other employees of the employer as required by § 40.1-29. If the Commissioner finds in the course of such investigation that the employer has violated a provision of § 40.1-29, the Commissioner may institute proceedings on behalf of any employee against his employer. Such proceedings shall be undertaken in accordance with the provisions of § 40.1-29, except that the Commissioner shall not require a written complaint of the violation or the written and signed consent of any employee as a condition of instituting such proceedings.

2020, cc. 205, 206.

§ 40.1-30. Registration of certain nonresident employers with Department.

(a) Any employer domiciled without this Commonwealth and performing any demolition, excavation, installation, paving, repair, maintenance, erection or construction work within this Commonwealth for a fixed price, commission, fee or percentage, when the cost of the undertaking, order, contract or subcontract is not less than $300 nor more than $60,000, shall, prior to the commencement of each such undertaking or the performance of each such order, contract or subcontract, register with the Department, at Richmond, on such form as may be prescribed by said Department, providing thereon the employer's name and address, the name and address of the employer's chief officer or owner, the name and address of the person in charge of the work being done, the type of work to be done, the date work will commence, the specific location of the work, the name of the person, firm, corporation, partnership or association for whom the work is being performed, the cost of the undertaking or the amount of the order, contract or subcontract and the approximate number of persons employed by the employer in said undertaking or performance, including the rates of pay and the number of persons employed at each rate and shall be submitted to the Department with a United States postal service money order or check drawn in favor of the State Treasurer in the amount of $100 for annual registration or $25 for registration for a specific job. Provided, however, nothing in this section shall apply to any such contractor who is registered under the provisions of Title 54.1, Chapter 11. Provided further, that any such employer may apply to the Department for annual registration which, if granted, shall relieve such employer from registration of each specific contract. Annual registration may be granted if the Department shall ascertain that such employer has a permanent and definite place of business outside this Commonwealth.

(b) Any employer failing to register with the Department as required by this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than $100 nor more than $500. Each day's failure to register shall constitute a separate offense.

(c) This section shall be enforceable by the Commissioner and all officers empowered to enforce the criminal laws of this Commonwealth.

Code 1950, § 40-24.1; 1966, c. 614; 1968, c. 106; 1970, c. 321; 1972, c. 241; 1979, c. 484.

§ 40.1-31. Assignment of wages and salaries; requirements.

No assignment, transfer, pledge or hypothecation of wages or salary due or to become due to any person shall be valid and enforceable against any employer of the assignor, except with the express consent in writing of such employer given to the creditor or assignee, unless and until all of the following requirements have been fully met:

(1) Such assignment is printed in type not smaller than pica, is a separate instrument not incorporated in or made a part of any other contract or instrument, and is plainly designated "Wage Assignment."

(2) Such assignment is executed in triplicate and in person by the assignor, is dated on the date on which it is executed, one executed copy thereof is delivered to the assignor, and one executed copy is mailed to the employer therein named within fifteen days after the execution thereof; provided, however, that such copy mailed to the employer shall be for his information only, and shall not be construed as giving such employer legal notice of the assignee's intention to enforce the terms thereof or as constituting the notice referred to in § 8.01-13.

(3) The name of employer of the assignor is written therein before the signing thereof and the total amount, if any, which is to be secured thereby is plainly stated therein.

(4) The assignor is, at the time of the execution of the assignment, employed by the employer therein named.

(5) Ten days before any notice of the assignee's intention to enforce the terms of the assignment is served upon the employer, the assignee gives the assignor notice in writing sent by mail to his last known address that default has been made in his obligation.

(6) Notice of the assignee's intention to enforce the terms of an assignment has been served on the employer by an officer or other person authorized to serve civil process. Such notice shall be valid to make the assignment effective only from the time it is served.

(7) Whenever the assignor changes his employment after executing an assignment contemplated by this section then any assignee who has otherwise fully complied with the provisions of this section may enforce his assignment against the new employer of the assignor provided that he mails a copy of the assignment to the new employer within fifteen days after learning of such change of employment and gives the same notice or notices to the new employer as is required to be given to the original employer and complies with the conditions of subdivision (5) hereof.

Code 1950, § 40-30; 1970, c. 321.

§ 40.1-32. Partial assignments invalid.

No partial assignment of wages shall be enforceable at law or in equity; provided, however, that an assignment of all wages over and above the exemption provided in § 34-29 shall not be considered a partial assignment under the provisions of this section.

Code 1950, § 40-31; 1970, c. 321.

§ 40.1-33. Certain assignments not affected.

The two preceding sections (§§ 40.1-31, 40.1-32) shall not be construed to apply to assignments of salaries, wages and income for the benefit of creditors as provided for in Article 2 (§ 8.01-525.6 et seq.) of Chapter 18.1 of Title 8.01.

Code 1950, § 40-32; 1970, c. 321.

§ 40.1-33.1. Retaliatory actions prohibited; civil penalty.

A. An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee or independent contractor, or take other retaliatory action regarding an employee or independent contractor's compensation, terms, conditions, location, or privileges of employment, because the employee or independent contractor:

1. Has reported or plans to report to an appropriate authority that an employer, or any officer or agent of the employer, has failed to properly classify an individual as an employee and failed to pay required benefits or other contributions; or

2. Is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry by an appropriate authority or in a court action.

B. The provisions of subsection A shall apply only if an employee or independent contractor who discloses information about suspected worker misclassification has done so in good faith and upon a reasonable belief that the information is accurate. Disclosures that are reckless or the employee knew or should have known were false, confidential by law, or malicious shall not be deemed good faith reports and shall not be subject to the protections provided by subsection A.

C. Any employee who is discharged, disciplined, threatened, discriminated against, or penalized in a manner prohibited by this section may file a complaint with the Commissioner. The Commissioner, with the written and signed consent of such an employee, may institute proceedings against the employer for appropriate remedies for such action, including reinstatement of the employee and recovering lost wages.

D. Any employer who discharges, disciplines, threatens, discriminates against, or penalizes an employee in a manner prohibited by this section shall be subject to a civil penalty not to exceed the amount of the employee's wages that are lost as a result of the violation. Civil penalties under this section shall be assessed by the Commissioner and paid to the Literary Fund.

2020, cc. 204, 271.

§ 40.1-33.2. Discriminatory actions prohibited.

A. An employer shall not discharge or in any other manner discriminate against an employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under § 40.1-29, or has testified or is about to testify in any such proceeding.

B. Any employee who is discharged or in any other manner discriminated against in a manner prohibited by this section may file a complaint with the Commissioner, and the Commissioner, with the written and signed consent of an employee, may institute proceedings on behalf of an employee for appropriate remedies for such action, including reinstatement of the employee and recovering lost wages and an additional amount equal to the lost wages as liquidated damages.

2020, cc. 950, 951, § 40.1-33.1.

Article 3. Employment of Women Generally.

§ 40.1-34. Repealed.

Repealed by Acts 1974, c. 272.

Article 4. Sanitary Provisions.

§ 40.1-39. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-40. Repealed.

Repealed by Acts 1985, c. 449.

Article 5. Safety Provisions.

§ 40.1-41. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-44. Repealed.

Repealed by Acts 1973, c. 425.

§ 40.1-44.1. Rules and regulations relating to tramways and other hauling and lifting devices.

(a) The Safety and Health Codes Board in the adoption of rules and regulations under this title shall adopt such reasonable rules and regulations as are designed to protect the safety and health of the employees engaged in the construction, maintenance, repair and operation of tramways or any other hauling or lifting device used as a public or employee conveyance, and to protect the safety and health of the public or the employees when using such conveyance in, about, or in connection with recreational areas, excluding vehicular travel covered by ICC, SCC, motor vehicle codes and § 36-98.3.

(b) The rules and regulations adopted by the Safety and Health Codes Board pursuant to subsection (a) of this section shall be enforced as specified in §§ 40.1-49.3 through 40.1-49.7.

1972, c. 602; 1973, c. 425; 1979, c. 406.

§ 40.1-45. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-49. Repealed.

Repealed by Acts 1973, c. 425.

§ 40.1-49.1. Repealed.

Repealed by Acts 1976, c. 607.

§ 40.1-49.2. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-49.3. Definitions.

For the purposes of §§ 40.1-49.4, 40.1-49.5, 40.1-49.6, 40.1-49.7, and 40.1-51.1 through 40.1-51.3 the following terms shall have the following meanings:

"Commission" means the Virginia Workers' Compensation Commission.

"Commissioner" means the Commissioner of Labor and Industry. Except where the context clearly indicates the contrary, any reference to Commissioner shall include his authorized representatives.

"Employee" means an employee of an employer who is employed in a business of his employer.

"Employer" means any person or entity engaged in business who has employees, but does not include the United States.

"Occupational safety and health standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.

"Serious violation" means a violation deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

"Person" means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any organized group of persons.

"Circuit court" means the circuit court of the city or county wherein the violation of this title or any standard, rule or regulation issued pursuant thereto is alleged to have occurred. Venue shall be determined in accordance with the provisions of §§ 8.01-257 through 8.01-267.

1979, c. 354; 1992, c. 777.

§ 40.1-49.4. Enforcement of this title and standards, rules or regulations for safety and health; orders of Commissioner; proceedings in circuit court; injunctions; penalties.

A. 1. If the Commissioner has reasonable cause to believe that an employer has violated any safety or health provision of Title 40.1 or any standard, rule or regulation adopted pursuant thereto, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation or violations, including a reference to the provision of this title or the appropriate standards, rules or regulations adopted pursuant thereto, and shall include an order of abatement fixing a reasonable time for abatement of each violation.

2. The Commissioner may prescribe procedures for calling to the employer's attention de minimis violations which have no direct or immediate relationship to safety and health.

3. No citation may be issued under this section after the expiration of six months following the occurrence of any alleged violation.

4. (a) The Commissioner shall have the authority to propose civil penalties for cited violations in accordance with subsections G, H, I, and J of this section. In determining the amount of any proposed penalty he shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. In addition, the Commissioner shall have authority to assess interest on all past-due penalties and administrative costs incurred in the collection of penalties for such violations consistent with § 2.2-4805.

(b) After, or concurrent with, the issuance of a citation and order of abatement, and within a reasonable time after the termination of an inspection or investigation, the Commissioner shall notify the employer by certified mail or by personal service of the proposed penalty or that no penalty is being proposed. The proposed penalty shall be deemed to be the final order of the Commissioner and not subject to review by any court or agency unless, within 15 working days from the date of receipt of such notice, the employer notifies the Commissioner in writing that he intends to contest the citation, order of abatement or the proposed penalty or the employee or representative of employees has filed a notice in accordance with subsection B of this section and any such notice of proposed penalty, citation or order of abatement shall so state.

B. Any employee or representative of employees of an employer to whom a citation and order of abatement has been issued may, within 15 working days from the time of the receipt of the citation and order of abatement by the employer, notify the Commissioner, in writing, that they wish to contest the abatement time before the circuit court.

C. If the Commissioner has reasonable cause to believe that an employer has failed to abate a violation for which a citation has been issued within the time period permitted for its abatement, which time shall not begin to run until the entry of a final order in the case of any contest as provided in subsection E of this section initiated by the employer in good faith and not solely for delay or avoidance of penalties, a citation for failure to abate will be issued to the employer in the same manner as prescribed by subsection A of this section. In addition, the Commissioner shall notify the employer by certified mail or by personal service of such failure and of the penalty proposed to be assessed by reason of such failure. If, within 15 working days from the date of receipt of the notice of the proposed penalty, the employer fails to notify the Commissioner that he intends to contest the citation or proposed assessment of penalty, the citation and assessment as proposed shall be deemed a final order of the Commissioner and not subject to review by any court or agency.

D. Civil penalties owed under this section shall be paid to the Commissioner for deposit into the general fund of the Treasurer of the Commonwealth. The Commissioner shall prescribe procedures for the payment of proposed assessments of penalties which are not contested by employers. Such procedures shall include provisions for an employer to consent to abatement of the alleged violation and pay a proposed penalty or a negotiated sum in lieu of such penalty without admission of any civil liability arising from such alleged violation.

Final orders of the Commissioner or the circuit courts may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner or the court as appropriate.

E. Upon receipt of a notice of contest of a citation, proposed penalty, order of abatement or abatement time pursuant to subdivision A 4 (b), subsection B or C of this section, the Commissioner shall immediately notify the attorney for the Commonwealth for the jurisdiction wherein the violation is alleged to have occurred and shall file a civil action with the circuit court. Upon issuance and service of process, the circuit court shall promptly set the matter for hearing without a jury. The circuit court shall thereafter issue a written order, based on findings of fact and conclusions of law, affirming, modifying or vacating the Commissioner's citation or proposed penalty, or directing other appropriate relief, and such order shall become final 21 days after its issuance. The circuit court shall provide affected employees or their representatives and employers an opportunity to participate as parties to hearings under this subsection.

F. 1. In addition to the remedies set forth above, the Commissioner may file a civil action with the clerk of the circuit court having equity jurisdiction over the employer or the place of employment involved asking the court to temporarily or permanently enjoin any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this title. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except individuals whose presence is necessary to avoid, correct or remove such imminent danger or to maintain the capacity of a continuous process operation to resume normal operations without a complete cessation of operations, or where a cessation of operations is necessary, to permit such to be accomplished in a safe and orderly manner. No order issued without prior notice to the employer shall be effective for more than five working days. Whenever and as soon as the Commissioner concludes that conditions or practices described in this subsection exist in any place of employment and that judicial relief shall be sought, he shall immediately inform the affected employer and employees of such proposed course of action.

2. Any court described in this section shall also have jurisdiction, upon petition of the Commissioner or his authorized representative, to enjoin any violations of this title or the standards, rules or regulations promulgated thereunder.

3. If the Commissioner arbitrarily or capriciously fails to seek relief under subdivision 1 of this subsection, any employee who may be injured by reason of such failure, or the representative of such employee, may bring an action against the Commissioner in a circuit court of competent jurisdiction for a writ of mandamus to compel the Commissioner to seek such an order and for such further relief as may be appropriate.

G. Any employer who has received a citation for a violation of any safety or health provision of this title or any standard, rule or regulation promulgated pursuant thereto and such violation is specifically determined not to be of a serious nature may be assessed a civil penalty of up to $12,471, as such amount may be adjusted as provided in subsection P, for each such violation.

H. Any employer who has received a citation for a violation of any safety or health provision of this title or any standard, rule or regulation promulgated pursuant thereto and such violation is determined to be a serious violation shall be assessed a civil penalty of up to $12,471, as such amount may be adjusted as provided in subsection P, for each such violation.

I. Any employer who fails to abate a violation for which a citation has been issued within the period permitted for its abatement (which period shall not begin to run until the entry of the final order of the circuit court) may be assessed a civil penalty of not more than $12,471, as such amount may be adjusted as provided in subsection P, for each day during which such violation continues.

J. Any employer who willfully or repeatedly violates any safety or health provision of this title or any standard, rule or regulation promulgated pursuant thereto may be assessed a civil penalty of not more than $124,709, as such amount may be adjusted as provided in subsection P, for each such violation.

K. Any employer who willfully violates any safety or health provisions of this title or standards, rules or regulations adopted pursuant thereto, and that violation causes death to any employee, shall, upon conviction, be punished by a fine of not more than $70,000 or by imprisonment for not more than six months, or by both such fine and imprisonment. If the conviction is for a violation committed after a first conviction of such person, punishment shall be a fine of not more than $140,000 or by imprisonment for not more than one year, or by both such fine and imprisonment.

L. In any proceeding before a judge of a circuit court parties may obtain discovery by the methods provided for in the Rules of Supreme Court of Virginia.

M. No fees or costs shall be charged the Commonwealth by a court or any officer for or in connection with the filing of the complaint, pleadings, or other papers in any action authorized by this section or § 40.1-49.5.

N. Every official act of the circuit court shall be entered of record and all hearings and records shall be open to the public, except any information subject to protection under the provisions of § 40.1-51.4:1.

O. The provisions of Chapter 30 (§ 59.1-406 et seq.) of Title 59.1 shall be considered safety and health standards of the Commonwealth and enforced as to employers pursuant to this section by the Commissioner of Labor and Industry.

P. Beginning in 2018, the Commissioner annually shall adjust the maximum civil penalties stated in subsections G through J each year by the percentage increase, if any, in the United States Average Consumer Price Index for all Urban Consumers (CPI-U), as published by the Bureau of Labor Statistics of the United States Department of Labor, from its monthly average for the previous calendar year. The amount of each adjustment to the maximum civil penalties shall be rounded to the nearest whole dollar. The adjustments to the maximum civil penalties shall be effective on each August 1. If the CPI-U is discontinued or revised, such other historical index or computation approved by the Commissioner shall be used for purposes of this section that would obtain substantially the same result as would have been obtained if the CPI-U had not been discontinued or revised.

1979, c. 354; 1982, c. 412; 1989, c. 341; 1991, c. 153; 1992, c. 777; 2005, c. 681; 2017, cc. 221, 263.

§ 40.1-49.5. Appeals to Court of Appeals.

Appeals shall lie from the order of the circuit court to the Court of Appeals in a manner provided by § 17.1-405 and the rules of the Supreme Court.

1979, c. 354; 1992, c. 777; 1993, c. 526.

§ 40.1-49.6. Same; attorneys for Commonwealth.

A. In any proceeding pursuant to the enforcement of the safety and health provisions of Title 40.1, the attorneys for the Commonwealth are hereby directed to appear and represent the Commonwealth before the circuit court in any civil or criminal matter involving any violation of such provisions in their respective jurisdictions.

B. The Office of the Attorney General shall provide one or more assistants who will be available to consult with and assist any attorney for the Commonwealth or his assistant in the preparation of any prosecution for violations of the occupational safety and health laws, standards, rules or regulations of the Commonwealth in order to establish uniform guidelines of prosecutorial and settlement policies and procedures in such cases.

1979, c. 354; 1992, c. 777.

§ 40.1-49.7. Same; publication of orders.

The Commissioner of Labor shall be responsible for the printing, maintenance, publication and distribution of all final orders of the circuit courts. Every attorney for the Commonwealth's office shall receive at least one copy of each such order.

1979, c. 354; 1992, c. 777.

§ 40.1-49.8. Inspections of workplace.

In order to carry out the purposes of the occupational safety and health laws of the Commonwealth and any such rules, regulations, or standards adopted in pursuance of such laws, the Commissioner, upon representing appropriate credentials to the owner, operator, or agent in charge, is authorized, with the consent of the owner, operator, or agent in charge of such workplace as described in subdivision (1) of this section, or with an appropriate order or warrant:

(1) To enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) To inspect, investigate, and take samples during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.

1979, c. 533; 1987, c. 643.

§ 40.1-49.9. Issuance of warrant.

Administrative search warrants for inspections of workplaces, based upon a petition demonstrating probable cause and supported by an affidavit, may be issued by any judge having authority to issue criminal warrants whose territorial jurisdiction encompasses the workplace to be inspected or entered, if he is satisfied from the petition and affidavit that there is reasonable and probable cause for the issuance of an administrative search warrant. No administrative search warrant shall be issued pursuant to this chapter except upon probable cause, supported by affidavit, particularly describing the place, things or persons to be inspected or tested and the purpose for which the inspection, testing or collection of samples for testing is to be made. Probable cause shall be deemed to exist if either (i) reasonable legislative or administrative standards for conducting such inspection, testing or collection of samples for testing are satisfied with respect to the particular place, thing, or person, or (ii) there is cause to believe that there is a condition, object, activity, or circumstance which legally justifies such inspection, testing or collection of samples for testing. The supporting affidavit shall contain either a statement that consent to inspect, test or collect samples for testing has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent in order to enforce effectively the occupational safety and health laws, regulations or standards of the Commonwealth which authorize such inspection, testing or collection of samples for testing. In the case of an administrative search warrant based on legislative or administrative standards for selecting workplaces for inspection, the affidavit shall contain factual allegations sufficient to justify an independent determination by the judge that the inspection program is based on reasonable standards and that the standards are being applied to a particular workplace in a neutral and fair manner. For example, if a selection is based on a particular industry's high hazard ranking, the affidavit shall disclose the method used to establish that ranking, the numerical basis for that ranking, and the relevant inspection history of the workplace to be inspected and the status of all other workplaces within the same territorial region which are subject to inspection pursuant to the legislative or administrative standards used by the Commissioner. The affidavit shall not be required to disclose the actual schedule for inspections or the underlying data on which the statistics were based, provided that such statistics are derived from reliable, neutral third parties. The issuing judge may examine the affiant under oath or affirmation to verify the accuracy of any matter in the affidavit. After issuing a warrant under this section, the judge shall file the affidavit in the manner prescribed by § 19.2-54.

1987, c. 643; 2014, c. 354.

§ 40.1-49.10. Duration of warrant.

Any administrative search warrant issued shall be effective for the time specified therein, but not for a period of more than fifteen days, unless extended or renewed by the judicial officer who signed and issued the original warrant. The warrant shall be executed and shall be returned to the clerk of the circuit court of the city or county wherein the inspection was made within the time specified in the warrant or within the extended or renewed time. The return shall list any records removed or samples taken pursuant to the warrant. After the expiration of such time, the warrant, unless executed, shall be void.

1987, c. 643; 2014, c. 354.

§ 40.1-49.11. Conduct of inspection, testing, or collection of samples for analysis.

No warrant shall be executed in the absence of the owner, operator or agent in charge of the particular place, things or persons unless specifically authorized by the issuing judicial officer upon showing that such authority is reasonably necessary to effect the purposes of a law or regulation being enforced. An entry pursuant to this warrant shall not be made forcibly, except that the issuing officer may expressly authorize a forcible entry (i) where facts are shown sufficient to create a reasonable suspicion of an immediate threat to an employee's health or safety, or (ii) where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. If forcible entry is authorized, the warrant shall be issued jointly to the Commissioner and to a law-enforcement officer who shall accompany the Commissioner's representative during the execution.

1987, c. 643.

§ 40.1-49.12. Review by courts.

A. No court of the Commonwealth shall have jurisdiction to hear a challenge to the warrant prior to its return, except as a defense in a contempt proceeding, unless the owner or custodian of the place to be inspected makes by affidavit a substantial preliminary showing accompanied by an offer of proof that (i) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in his affidavit for the administrative search warrant and (ii) the false statement was necessary to the finding of probable cause. The court shall conduct such expeditious in camera review as the court may deem appropriate.

B. After the warrant has been executed and returned, the validity of the warrant may be reviewed either as a defense to any citation issued by the Commissioner or otherwise by declaratory judgment action brought in a circuit court. In any such action, the review shall be confined to the face of the warrant and affidavits and supporting materials presented to the issuing judge unless the employer whose workplace has been inspected makes by affidavit a substantial showing accompanied by an offer of proof that (i) a false statement, knowingly and intentionally, or with reckless disregard for the truth, was made in support of the warrant and (ii) the false statement was necessary to the finding of probable cause. The reviewing court shall not conduct a de novo determination of probable cause, but only determine whether there is substantial evidence in the record supporting the decision to issue the warrant.

1987, c. 643; 2014, c. 354.

§ 40.1-49.13. Voluntary Protection Program.

A. As used in this section:

"Model system" means an exemplary, voluntarily implemented worker safety and health management system that (i) implements comprehensive safety and health programs that exceed basic compliance with occupational safety and health laws and regulations and (ii) meets the VPP standards adopted by the Safety and Health Codes Board pursuant to subsection B.

"Voluntary Protection Program" or "VPP" means a program under which the Commissioner recognizes and partners with workplaces in which a model system has been implemented.

B. The Safety and Health Codes Board shall adopt definitions, rules, regulations, and standards necessary for the operation of the Voluntary Protection Program in a manner that will promote safe and healthy workplaces throughout the Commonwealth. The standards for the VPP shall include the following requirements for VPP participation:

1. Upper management leadership and active and meaningful employee involvement;

2. Systematic assessment of occupational hazards;

3. Comprehensive hazard prevention, mitigation, and control programs;

4. Employee safety and health training; and

5. Safety and health program evaluation.

C. Applications for participation in the VPP shall be submitted by the workplace's management. Applications shall include documentation establishing to the satisfaction of the Commissioner that the employer meets all standards for VPP participation.

D. The Department shall provide for onsite evaluations by VPP evaluation teams of each workplace that has applied to participate in the VPP to determine that the applicant's workplace complies with the standards for VPP participation.

E. A workplace's continued participation in the VPP shall be conditioned on compliance with the standards for VPP participation, as determined by periodic onsite evaluations by VPP evaluation teams.

F. During periods in which a workplace is a participant in the VPP, the workplace shall be exempt from inspections or investigations under § 40.1-49.4; however, this exception shall not apply to inspections or investigations of the workplace arising from complaints, referrals, fatalities, catastrophes, nonfatal accidents, or significant toxic chemical releases.

2015, cc. 20, 339.

§ 40.1-50. Repealed.

Repealed by Acts 1985, c. 449.

§ 40.1-51. State Health Commissioner to provide advice and aid; rules and regulations.

A. The State Health Commissioner shall be responsible for advising and providing technical aid to the Commissioner on matters pertaining to occupational health on request.

B. The Department of Labor and Industry shall be responsible for drafting and submitting to the Virginia Safety and Health Codes Board for adoption rules and regulations pertaining to control measures to protect the health of workers. In formulating rules and regulations pertaining to health, the Department of Labor and Industry shall request the advice and technical aid of the Department of Health.

Code 1950, § 40-62.2; 1950, p. 636; 1970, c. 321; 1972, c. 567; 1985, c. 449; 2003, c. 445.

§ 40.1-51.1. Duties of employers.

A. It shall be the duty of every employer to furnish to each of his employees safe employment and a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees and to comply with all applicable occupational safety and health rules and regulations promulgated under this title.

B. Every employer shall provide to employees, by such suitable means as shall be prescribed in rules and regulations of the Safety and Health Codes Board, information regarding their exposure to toxic materials or harmful physical agents and prompt information when they are exposed to concentration or levels of toxic materials or harmful physical agents in excess of those prescribed by the applicable safety and health standards and shall provide employees or their representatives with the opportunity to observe monitoring or measuring of exposures. Every employer shall also inform any employee who is being exposed of the corrective action being taken and shall provide former employees with access to information about their exposure to toxic materials or harmful physical agents.

C. Every employer cited for a violation of any safety and health provisions of this title or standards, rules, and regulations promulgated thereunder shall post a copy of such citation at the site of the violations so noted as prescribed in the rules and regulations of the Safety and Health Codes Board.

D. Every employer shall report to the Virginia Department of Labor and Industry within eight hours any work-related incident resulting in a fatality or within 24 hours any work-related incident resulting in (i) the inpatient hospitalization of one or more persons, (ii) an amputation, or (iii) the loss of an eye, as prescribed in the rules and regulations of the Safety and Health Codes Board.

E. Every employer, through posting of notices or other appropriate means, shall keep his employees informed of their rights and responsibilities under this title and of specific safety and health standards applicable to his business establishment.

F. An employer representative shall be given the opportunity to accompany the safety and health inspectors on safety or health inspections.

G. Nothing in this section shall be construed to limit the authority of the Commissioner pursuant to § 40.1-6 or the Board pursuant to § 40.1-22 to promulgate necessary rules and regulations to protect and promote the safety and health of employees.

1972, c. 602; 1973, c. 425; 1976, c. 607; 1979, c. 354; 1995, c. 373; 2015, c. 270; 2016, c. 336.

§ 40.1-51.1:1. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-51.2. Rights and duties of employees.

(a) It shall be the duty of each employee to comply with all occupational safety and health rules and regulations issued pursuant to this chapter and any orders issued thereunder which are applicable to his own action and conduct.

(b) Employees or their representatives may bring to the attention of their employer any hazardous conditions that exist or bring the matter to the attention of the Commissioner or his authorized representative, without first bringing the matter to the attention of their employer. Upon receipt of any complaint of hazardous conditions, the Commissioner or his authorized representative shall cause an inspection to be made as soon as practicable. Within two working days after making the oral complaint the employee or the employee representative shall file a written complaint with the Commissioner on a form prescribed by the Commissioner, if at that time, the Commissioner or his authorized representative has not caused the hazardous condition to be corrected. A copy of such written complaint shall be made available to the employer by the Commissioner at the time of such inspection. The name or names of individuals bringing such matters to the attention of the Commissioner shall be held in confidence upon request of such individuals.

(c) [Repealed.]

(d) A representative of the employees selected by the employees shall be given an opportunity to accompany the Commissioner or his authorized representative during the physical inspection of the work place for the purpose of aiding such inspection. Where there is no authorized employee representative, the Commissioner or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety at the work place. No person shall discharge or in any manner discriminate against an employee representative for his participation in any safety and health inspection.

(e) The employer and the complaining employee, employees or employee representative shall be notified in writing by the Commissioner or his authorized representative of any decision concerning a complaint, of the reasons for such decision and of the rights of the parties to redress pursuant to § 40.1-49.4 of the Code.

1972, c. 602; 1973, c. 425; 1976, c. 607.

§ 40.1-51.2:1. Discrimination against employee for exercising rights prohibited.

No person shall discharge or in any way discriminate against an employee because the employee has filed a safety or health complaint or has testified or otherwise acted to exercise rights under the safety and health provisions of this title for themselves or others.

1979, c. 354.

§ 40.1-51.2:2. Remedy for discrimination.

A. Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of § 40.1-51.2:1 may, within 60 days after such violation occurs, file a complaint with the Commissioner alleging such discharge or discrimination. The employee shall be prohibited from seeking relief under this section if he fails to file such complaint within the 60-day time period. Upon receipt of such complaint, the Commissioner shall cause such investigation to be made as he deems appropriate. If, upon such investigation, he determines that the provisions of § 40.1-51.2:1 have been violated, he shall attempt by conciliation to have the violation abated without economic loss to the employee. In the event a voluntary agreement cannot be obtained, the Commissioner shall bring an action in a circuit court having jurisdiction over the person charged with the violation. The court shall have jurisdiction, for cause shown, to restrain violations and order appropriate relief, including rehiring or reinstatement of the employee to his former position with back pay plus interest at a rate not to exceed eight percent per annum.

B. Should the Commissioner, based on the results of his investigation of the complaint, refuse to issue a charge against the person that allegedly discriminated against the employee, the employee may bring action in a circuit court having jurisdiction over the person allegedly discriminating against the employee, for appropriate relief.

1979, c. 354; 2001, c. 332; 2005, cc. 743, 789.

§ 40.1-51.3. Duties of health and safety inspectors.

(a) It shall be the duty of all safety and health inspectors to inspect all places of business covered by the State Plan developed in accordance with the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596) for conformity with the provisions of this title and with all safety and health standards, rules and regulations promulgated under this title.

(b) [Repealed.]

1972, c. 602; 1979, c. 354.

§ 40.1-51.3:1. Penalty for giving advance notice of safety or health inspection under this title.

Any person who gives advance notice of any safety or health inspection to be conducted under the provisions of this title without authority of the Commissioner or his authorized representative shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $100 nor more than $1,000, or by imprisonment for not more than six months, or by both such fine and imprisonment.

1973, c. 425; 1994, c. 28.

§ 40.1-51.3:2. Evidence of civil penalty against employer under state, federal, etc., safety codes inadmissible in personal injury or property damage trial.

In the trial of any action to recover for personal injury or property damage sustained by any party, in which action it is alleged that an employer acted in violation of or failed to act in accordance with any provision of this chapter or any state or federal occupational safety, health and safety standards act, the fact of the issuance of a citation, the voluntary payment of a civil penalty by a party charged with a violation, or the judicial assessment of a civil penalty under this chapter or any such state or federal occupational safety, health and safety standards act, shall not be admissible in evidence.

1974, c. 516.

§ 40.1-51.4. Repealed.

Repealed by Acts 1979, c. 354.

§ 40.1-51.4:1. Confidentiality of trade secrets.

All information reported to or otherwise obtained by the Commissioner or his authorized representative in connection with any inspection or proceeding under this title which contains or which might reveal a trade secret referred to in § 1905 of Title 18 of the United States Code shall be considered confidential for the purpose of that section, except that such information may be disclosed to the Commissioner or his authorized representatives concerned with carrying out any provisions of this title or any proceeding under the aforementioned title. In any such proceeding, the court, the Safety and Health Codes Board or the Commissioner shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

1976, c. 607; 1994, c. 28.

§ 40.1-51.4:2. Penalty for making false statements, etc.

Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan, or other document filed or required to be maintained under this title shall upon conviction be punished by a fine of not more than $10,000, or by imprisonment for not more than six months or by both.

1976, c. 607; 1994, c. 28.

§ 40.1-51.4:3. Prohibition of use of certain questions on polygraph tests for employment.

No employer shall, as a condition of employment, require a prospective employee to answer questions in a polygraph test concerning the prospective employee's sexual activities unless such sexual activity of the prospective employee has resulted in a conviction of a violation of the criminal laws of this Commonwealth. Any written record of the results of a polygraph examination given to a prospective employee by an employer shall be destroyed or maintained on a confidential basis by the employer giving the examination and shall be open to inspection only upon agreement of the employee tested.

Violation of this section shall constitute a Class 1 misdemeanor.

1977, c. 521; 1990, c. 368.

§ 40.1-51.4:4. Prohibition of use of polygraphs in certain employment situations.

A. As used in this section, the term "lie detector test" means any test utilizing a polygraph or any other device, mechanism or instrument which is operated, or the results of which are used or interpreted by an examiner for the purpose of purporting to assist in or enable the detection of deception, the verification of truthfulness, or the rendering of a diagnostic opinion regarding the honesty of an individual.

B. Notwithstanding the provisions of § 40.1-2.1, it shall be unlawful for any law-enforcement agency as defined in § 9.1-500 or regional jail to require any employee to submit to a lie detector test, or to discharge, demote or otherwise discriminate against any employee for refusal or failure to take a lie detector test, except that the chief executive officer of a law-enforcement agency or the superintendent of a regional jail may, by written directive, require an employee to submit to a lie detector test related to a particular internal administrative investigation concerning allegations of misconduct or criminal activity. No employee required to submit to a lie detector test shall be discharged, demoted or otherwise discriminated against solely on the basis of the results of the lie detector test.

C. Any person who believes that he has been discharged, demoted or otherwise discriminated against by any person in violation of this section may, within 90 days after such alleged violation occurs, file a complaint with the Commissioner. Upon a finding by the Commissioner of a violation of this section, the Commissioner shall order, in the event of discharge or demotion, reinstatement of such person to his former position with back pay plus interest at a rate not to exceed eight percent per annum. Such orders of the Commissioner which have become final under the Virginia Administrative Process Act (§ 2.2-4000 et seq.) may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner. The Commissioner, or his authorized representative, shall have the right to petition circuit court for injunctive or such other relief as may be necessary for enforcement of this section. No fees or costs shall be charged the Commonwealth by a court or any officer for or in connection with the filing of the complaint, pleadings, or other papers in any action authorized by this section.

D. The analysis of any polygraph test charts produced during any polygraph examination administered to a party or witness shall not be submitted, referenced, referred to, offered or presented in any manner in any proceeding conducted pursuant to § 2.2-1202.1 or conducted by any county, city or town except as to disciplinary or other actions taken against a polygrapher.

1994, c. 561; 1998, c. 140; 2000, cc. 585, 591; 2012, cc. 803, 835.

§ 40.1-51.4:5. Immunity of employees for reporting threatening conduct.

A. Any employee who, in good faith with reasonable cause and without malice, truthfully reports threatening conduct by a person employed at the same workplace shall be immune from all civil liability that might otherwise be incurred or imposed as the result of making such a report.

B. As used in subsection A, "threatening conduct" means any conduct that would place a person in reasonable apprehension of death or bodily injury.

C. The immunity provided by this section shall not abrogate any other immunity that an employee may be entitled to assert.

2002, c. 537.

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