Summer in the DMV: Employment Law Developments in D.C., Virginia, and Maryland

As summer begins in earnest, companies in the DC/VA/MD area should be aware of numerous employment law developments, many of which go into effect as early as July 1.

District of Columbia

• Paid family leave: On July 1, 2020, individuals can begin taking paid leave under the District’s Paid Family Leave Program.  This program provides up to 8 weeks of paid leave per year to bond with a new child, 6 weeks of paid leave per year to care for a family member with a serious health condition, and 2 weeks of paid leave per year for the individual in connection with the individual’s own serious health condition. From July 1, 2020- October 1, 2021, the maximum weekly paid leave benefit is $1,000 for a maximum of 8 weeks per year.
  
  To prepare for the implementation of Paid Leave, employers should ensure they are giving their employees proper notice of the availability of paid leave, including posting the required Notice to Employers and appropriately communicating information concerning this leave to employees. Employers should also ensure that they are paying appropriate payroll taxes related to this leave — an obligation that began in July 2019.

Maryland

• Mini-WARN: Effective October 1, 2020, employers with 50 or more employees that operate “an industrial, commercial, or business enterprise” in Maryland will be required to provide written notice to employees at least 60 days prior to relocating all or some operations from one workplace to another, shutting down a workplace, or shutting down operations where at least 25% or 15 employees (whichever is greater) are laid off over a three month period.
• Expanded definition of “race” to provide broader protection against discrimination: Effective October 1, 2020, Maryland anti-discrimination laws will include in the definition of “race” traits or styles associated with race, including hair texture, afro hairstyles, and protective hairstyles (e.g., braids, twists, and locks).
• Ban on wage history inquiries and requirements to provide wage range: Effective October 1, 2020, Maryland employers will be prohibited from seeking or relying on an applicant’s wage history for the purposes of screening, considering an applicant for employment, or determining wages, except that, after an offer is made, an employer may seek to confirm an applicant’s wage history if an applicant voluntarily provides the wage information to negotiate a wage higher than that which was offered.  Additionally, an employer must provide to an applicant, upon request, the wage range for the position to which the applicant applied.

Virginia

• Significant changes to the Virginia Human Rights Act (the “VHRA”): On July 1, 2020, the following changes to the VHRA will be implemented:

  • New protections against discrimination based on gender identity, sexual orientation, and veteran status.
  • Expanded applicability: where the protections of the VHRA previously only applied to employers with more than 5 but fewer than 15 employees (fewer than 20 employees for age based claims), it will now cover all employers with more than 15 employees.  Employers with more than 5 employees continue to be covered by the VHRA for the purposes of unlawful discharge on the basis of race, color, religion, national origin, status as a veteran, sex, sexual orientation, gender identity, marital status, pregnancy, or childbirth or related medical conditions including lactation (this number is more than five but fewer than 20 employees for unlawful discharge based on age).
  • Private rights of action and expanded penalties: After exhausting administrative remedies, an employee can now bring a private cause of action against an employer.  Potential damage awards now include compensatory and punitive damages (with no statutory cap, differentiating the VHRA from its federal analog), reasonable attorney fees and costs, and other non-monetary remedies such as injunctions.  The law also allows the Attorney General to intervene in a civil action where the “case is of general public importance.”

Separately, the VHRA was modified to clarify that prohibitions on discrimination “‘because of race’ or ‘on the basis of race’ …include[s] [a prohibition on discrimination] because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”  The statute was also amended to provide that “reasonable accommodations,” must be made for pregnancy, childbirth, and related medical conditions (including lactation).  These changes also become effective July 1.

• New Whistleblower Laws: Beginning July 1, 2020, Virginia law will now protect employees who report violations of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official, refuse to participate in such a violation, or provide information to or testify before any governmental body or law enforcement official in connection with an investigation into such a violation.  Whistleblowers will also be able to bring civil actions against employers and take advantage of remedies such as reinstatement, compensation for lost wages, and attorneys’ fees.
• Non-competes disallowed for low wage employees: Beginning July 1, 2020, employers are barred from entering into covenants not to compete with low wage employees, i.e., workers earning less than the average weekly wage in Virginia. Non-disclosure agreements are still allowed. 
• Modified Ban-the-Box laws: Beginning July 1, 2020, employers cannot inquire “in an application, interview, or otherwise” whether an employee has been arrested, charged with, or convicted for simple marijuana possession (less than 1 oz.).
• New Wage & Hour Laws:
  • Expanded wage payment protections: Beginning July 1, 2020, expanded wage payment laws go into effect, which include the opportunity for private rights of action and collective actions, and involve robust penalties, such as treble damages and attorneys’ fees in cases where employers knowingly failed to pay wages owed.
  • New worker misclassification laws: Beginning July 1, 2020, individuals contending that they were knowingly misclassified as independent contractors instead of employees will be able to bring private causes of actions. Beginning January 1, 2021, Virginia will adopt a presumption that workers are employees and not independent contractors.
  • Employees allowed to share wage information: Beginning July 1, 2020, Virginia employers are prohibited from retaliating against employees who inquire, or share information about their or another employee’s wages, except that an employee who has access to employee or applicant compensation information as part of their essential job functions may generally not disclose this information to individuals who do not otherwise have access to that information.
  • Minimum wage increases: Virginia will increase state minimum wage from $7.25 to $9.50 on May 1, 2021 (the implementation of these increases was delayed from the original January 1, 2021 date due to the coronavirus pandemic). Increases will continue each January thereafter.

Employers in the DMV should review their policies and procedures to ensure that they are in compliance with these new laws.