Virginia’s New Overtime Law Has Real Teeth

By: Jonathan R. Mook

Virginia’s wave of employee friendly legislation continues.  Last year, the General Assembly greatly expanded the scope of the Commonwealth’s employment discrimination laws and began the process of hiking Virginia’s minimum wage toward a $15 per hour target.  This year, the General Assembly turned its attention to overtime protections for Virginia’s workers by enacting the Virginia Overtime Wage Act, which becomes effective July 1, 2021.  The new wage law specifically requires employers to pay 1½ times an employee’s regular rate of pay for hours worked in excess of 40 in a work week.  It also incorporates special protections for employees seeking to enforce their overtime rights.

Importantly, these protections provide for greater penalties on employers who fail to pay the proper amount of overtime and strengthen the procedures that employees may use to enforce their rights.  Thus, employers who commit overtime wage violations will now be subject to liquidated (or double) damages without being able to rely on the federal Fair Labor Standards Act (FLSA) “good faith” with “reasonable grounds” defense.  Moreover, the new Virginia law allows employees to recover treble damages where an employer is found to have committed a “knowing” violation of the law.  Such a violation is one where the employer had actual knowledge that it was not paying overtime wages and acted in deliberate ignorance or reckless disregard of its overtime obligations.

On the procedural front, the Virginia Overtime Wage Act contains a longer statute of limitations than the FLSA by establishing a three-year limitations period for overtime claims and allowing an employee to recover overtime for up to three years.  The FLSA, by contrast, has a two-years limitation period, which may be extended to three years only for willful violations by the employer.

Finally, although Virginia normally does not allow class or collective actions, the Virginia Overtime Wage Act contains an explicit authorization for employees to collectively sue their employer for violating the statute.  This new authorization of collective actions for overtime suits under Virginia law serves to emphasize the importance for all Virginia employers to understand and comply with their wage hour obligations.  The last thing that an employer wants to contend with is a collective action by its employees seeking three-year’s worth of overtime pay with the amount being trebled for “knowing” violations.

We at DiMuroGinsberg are here to assist you in understanding and complying with your legal obligations.  If you have any questions pertaining to the Virginia Overtime Act or other matters pertaining to Virginia’s employment laws, please contact DiMuroGinsberg partner, Jonathan R. Mook at

Virginians Will Be Lighting Their Joints on July 1

By M. Jarrard Wright, DiMuroGinsberg P.C.

Starting July 1, Virginia will be the first state in the southern United States to allow the use of recreational marijuana. That’s because on April 21, at the close of this year’s General Assembly session, Governor Ralph Northam signed a historic marijuana legalization bill allowing adults to possess small amounts of pot. Although the original bill that passed the General Assembly wouldn’t have taken effect for a few years, pressure from civil rights and other advocacy groups led to amendments late in the legislative process, which advanced the effective date to July 1. While the date is fast approaching, the regulatory and logistical issues are complicated and will likely take years to address fully.

What the New law Says

Virginia’s new law permits adults over the age of 21 to possess up to an ounce of marijuana and allows for the home cultivation of four plants. Adult possession of more than an ounce is subject to a $25 civil penalty, while possession of more than a pound remains a criminal felony. Children and teenagers may not possess marijuana or access plants grown at home. In addition, the new law establishes a process to expunge past criminal convictions, which many civil rights groups supported.

While the decriminalization of marijuana will be complete within a month, the regulatory process for the purchase and sale of pot will take much longer. A new agency called the Virginia Cannabis Control Authority will oversee and regulate the commercial market for marijuana, and retail sales aren’t expected to begin until January 2024.

Importantly, the General Assembly will be required to reenact the legislation’s retail sales provisions next year. Accordingly, the regulatory requirements for opening a marijuana dispensary for general public retail sales remain to be seen.

Uncertainty for Employers

Also unknown is the new marijuana law’s ultimate impact on the employee-employer relationship. As currently enacted, the law doesn’t address whether employers will be able to (1) maintain a “marijuana free” workplace or (2) mandate testing for the drug’s use. Currently, you may maintain drug testing policies for marijuana. Current Virginia law generally gives you wide latitude in setting policies to test and to fire employees for legal drug use outside of working hours.

Likewise, the new state law doesn’t change either the federal laws criminalizing marijuana or the drug-free workplace requirements of the Federal Acquisition Regulations (FAR), mandated for federal government contractors and subcontractors.

Accordingly, for the moment, the status quo remains. Virginia employers still have the authority to implement drug testing and retention policies related to marijuana usage.

What’s on The Horizon

That said, the law in this area is likely to develop rapidly over the next year and continue to evolve during the years to come. On the federal level, the pressure on Congress to decriminalize marijuana is growing, which could affect federal government contracting requirements in the future. On the state level, the General Assembly will likely be faced in the not-too-distant future with having to address the employment issues arising from the new marijuana law.

A model for the state legislation probably will be the recently enacted medical cannabis oil law, which also takes effect on July 1. That law prohibits Virginia employers from discharging or disciplining employees for the lawful use of medical cannabis oil outside the workplace “pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease.”

Under the medical cannabis oil law, you still can prohibit the use of cannabis oil products during work hours and at the workplace. In addition, federal contractors and subcontractors can continue to comply with the federal government requirements for maintaining a drug-free workplace.

The medical cannabis oil law also allows you to impose sanctions on employees who are under the influence of cannabis at work. That said, the fact that traces of cannabis can remain in the human body for weeks means it will be difficult for many employers to determine whether an employee is impaired simply by using a drug test alone.

While medical cannabis oil and recreational marijuana are different in terms of their nature and effect, there likely will be a strong push in the General Assembly to treat them similarly and impose limits on an employer’s ability to discipline or discharge an employee for recreational pot use during nonwork hours and outside the workplace.

What Should You Do?

On July 1, it will be business as usual for Virginia employers, but it may not stay that way for long. Therefore, you should continue to monitor the changing social and regulatory environment and consult with legal counsel to make your policies stay compliant as the law develops. While the historic, first-in-the-South recreational marijuana legalization will take place soon, the regulatory and business impacts are just beginning, with no clear endpoint in sight.

Jarrad Wrightis a partner at DiMuroGinsberg Alexandria. You can reach him at

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Tenth Circuit Joins Other Courts on Failure to Accommodate Claims

By: Jonathan R. Mook

One of the defining features of the Americans with Disabilities Act (“ADA”) is the obligation of an employer to take affirmative steps to provide “reasonable accommodation” to individuals with disabilities in order to enable them to perform the essential functions of the job.

In this regard, the ADA defines discrimination as “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.”
For most courts, to state a reasonable accommodation claim, a plaintiff need merely show that with reasonable accommodation, she could have performed the essential functions of the job, that the employer had notice of the plaintiff’s disability, and that the employer failed to provide the accommodation. There is no need for a plaintiff to make an additional, separate showing that she suffered an adverse job action as a result of the employer’s failure to accommodate.

The only circuit court to deviate from this view has been the Tenth Circuit, which, in a 2018 three-judge panel opinion in Exby-Stolley v. Bd. Of Cty. Comm’rs, held that a plaintiff must establish an additional element: that he or she suffered an adverse employment action as a result of the failure to accommodate. The panel opinion prompted a vigorous dissent by one circuit court judge, which led the plaintiff to seek en banc review by all of the judges on the Tenth Circuit.

The circuit court accepted review, and in a closely divided seven-to-six decision, the Tenth Circuit, sitting en banc, reversed the 2018 panel decision and sent the case back to the district court for a jury trial to decide the plaintiff’s failure to accommodate claim. In doing so, the appeals court followed the reasoning of its sister circuit courts and held that to pursue a failure to accommodate claim, a plaintiff is not required to show that she suffered an adverse employment action.

Although some commentators have expressed concern that the Tenth Circuit’s en banc decision in Exby-Stolley will open the flood gates for ADA reasonable accommodation claims, the impact of the decision may not be as dire as has been painted. Most ADA claims arise when a disabled employee requests an accommodation to perform the essential functions of the job, the request is denied, and the employee is later terminated or demoted because the employee cannot satisfy the job requirements. Thus, in addition to an employer’s failure to accommodate, the employer also has taken an adverse job action (such as termination or demotion). Accordingly, only time will tell how the Tenth Circuit’s decision in Exby-Stolley will impact the development of ADA law.

If you would like a copy of Jonathan’s article entitled, “Tenth Circuit Joins Other Courts on Failure to Accommodate Claims,” which appears in the March, 2021 issue of Bender’s Labor & Employment Bulletin, please contact Jonathan at

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