Virginia Law Targets Worker Misclassification

By:  Jayna Genti

Companies misclassifying their employees as independent continues to be a hot-button issue throughout the country, and Virginia is no exception. In the last year alone, legislation related to independent contractor misclassification was introduced at the federal level and in at least 20 states. New Jersey and California recently enacted employee misclassification laws, and other states including New York are considering similar legislation.

Virginia Acts to Prevent Misclassification

In 2019, Virginia Governor Northam issued an executive order calling for an inter-agency task force to make recommendations on how to address the issue.  The study results issued last November found that about 214,000 Virginia workers are misclassified as contractors, costing the Commonwealth some $28 million in tax revenues each year.

In response to the task force’s recommendations, the Virginia General Assembly passed legislation this term that seeks to prevent misclassification and to penalize those employers who misclassify their workers.  Governor Northam recently signed the legislation into law, which will take effect January 1, 2021.

Classification of Employees

Under the new law, the Virginia Department of Taxation will determine whether a worker is an employee or independent contractor by applying Internal Revenue Service guidelines.  The IRS guidelines involve a multi-factor analysis, with the most important being the level of control exercised by a company.  In making the requisite assessment, the presumption will be that a worker who performs a service for an employer for pay will be considered an employee unless the individual or his or her employer demonstrates that she is an independent contractor.

Penalties and Enforcement

The new Virginia misclassification law has some real teeth.  Businesses that improperly treat their employees as independent contractors will be subject to a fine of up to $1,000 per worker for a first offense.  Maximum fines will increase to $2,500 per misclassified individual for a second offense, and up to $5,000 per misclassified individual for a third or subsequent offense.

The new legislation also prohibits the awarding of public contracts to employers that misclassify workers.  Debarment will last for up to one year for a second offense and up to two years for a third offense.  The legislation further requires the Virginia Department of Taxation to share information to help with enforcement.

Further Efforts to Halt Misclassification

The new Virginia law imposing penalties for employee misclassification will not be the end of the story.  Further efforts are likely to be forthcoming to crack down on employers who misclassify their workers, and deny tax revenues to both states and the federal government.  The impetus for the Commonwealth to move quickly against employee misclassification has arisen as a result of the recent federal legislation extending unemployment insurance to gig workers and other independent contractors who do not traditionally receive unemployment when they cannot work.  Unemployment benefits are funded by specific payroll taxes on employee pay.  Companies, however, do not pay unemployment insurance for independent contractors, even though they will now be able to receive unemployment benefits courtesy of the federal government.

Thus, we can expect heightened scrutiny on companies that misclassify employees as independent contractors and, thereby, evade their obligation to pay unemployment taxes.  As it stands, misclassification already has reportedly denied the Commonwealth substantial revenue, and this concern will only be heightened by the current COVID-19 pandemic and the stay-at-home orders shuttering many businesses.

Bottom Line

Going forward, you can expect greater attention by Virginia enforcement and investigative agencies to claims of worker misclassification.  Those agencies are on high alert for violations of the law and undoubtedly will use the full spectrum of available enforcement mechanisms to crack down and penalize those employers that evade the law.  The stakes of losing at the agency level are high and can lead to fines, legal expenditures, and litigation.

Given the continuing evolution of these and other related employment law matters, you are well advised to undertake a thorough assessment of the appropriateness and defensibility of classifying any members of your workforce as independent contractors.  Such an evaluation should be undertaken under the direction of an employment law attorney who is well versed in these matters and can review your policies and present workforce classifications to ensure legal compliance.  Misclassification no longer will result in simply a slap on the wrist.  Real penalties will now be imposed.

Virginia Hikes Minimum Wage

By:  Jonathan R. Mook and Colete Fontenot

The Virginia General Assembly for the first time in ten years has increased the state’s minimum wage and has established a mechanism to raise the minimum wage in the coming years.  Minimum wage workers in Virginia will now see a substantial raise next year, and in the years that follow – potentially more than doubling to $15 an hour by 2026.

What Are the Increases?

The new Virginia law is fairly complicated in terms of its provisions increasing the minimum wage over time.  Here’s the rundown:

Beginning May 1, 2021, employees paid at the current federal minimum wage of $7.25 would need to be paid $9.50 an hour – an increase of $2.25 per hour.  After that, the minimum wage will increase automatically on the first day of the year by $1.50 every year until 2023.  In 2023, the minimum wage will be increased by only $1.00; and in 2024, there will be no increase at all.

Under the measure as passed, the minimum wage also will not increase in 2025 and 2026 unless there is a new vote in the General Assembly to authorize the increases, which would be at the rate of $1.50 per hour.  If the legislature does not enact authorization for a wage increase, however, that does not mean the minimum wage will not rise.  Instead, beginning in 2027, a yearly adjusted minimum wage will be imposed, with increases based on the yearly increase in the Consumer Price Index (CPI). Even if the CPI falls, the adjustment cannot be less than zero.

Who Is Covered?

At the present time, if you have four or more employees, you must pay the state minimum wage.  Importantly, the new legislation also removes any limitation on the number of employees you must have in order to comply.  One is enough.  The only exclusions are for farm workers, work study students, and students under the age of 18 who work less than 20 hours per week.

For Now, No Regional Differentials

Many Virginia legislators fought hard for regional differentials, which would have allowed for variations of the minimum wage based on the economics of the particular area.   Members in rural areas, where the cost of living is lower than the more populous parts of the state, expressed concerns about imposing what they termed a “Northern Virginia rate” on the rest of the Commonwealth.  In the end, the new legislation does not include any regional distinctions.

Starting in 2022, however, the Virginia Department of Housing and Community Development, the Economic Development Partnership Authority, and the Employment Commission will “conduct a joint review of the feasibility and potential impact of instituting a regional minimum wage in the Commonwealth.”  A working group formed by these agencies will study and evaluate influential factors, including linking the minimum wage to the cost of living in the area served, the impact on employers and the fringe benefits they offer, the impact on workers with a focus on income inequality, and the experience of other states with a regional wage.  Approving a regional variation in the minimum wage will require another vote in the General Assembly before July 1, 2024.

Getting Ready for the Increase

The General Assembly’s increase in the minimum wage moves Virginia from having one of the lowest state minimum wages to one of the highest.  Undoubtedly this increase will have an impact on virtually all businesses in the Commonwealth – even those that now pay their employees more than the minimum wage.  That’s because minimum wage increases usually have the real world effect of boosting the wages of all hourly employees.

What should you be doing to prepare for the increase that kicks in on May 1, 2021?  Here are some suggestions:

  • Make sure your payroll department or payroll service is aware of the minimum wage increase and is prepared and stays in compliance with the new law.
  • Check and double check your cash flow to make sure you will have funds available for the increased wages you will be paying to your minimum wage employees.
  • If you are planning to hire minimum wage workers, create a hiring plan you can afford given the upcoming wage increase. In some cases, you may find that hiring temporary workers, as needed, is less expensive than taking on full-time regular employees.

Finally, in four years if not before, the General Assembly will be addressing the minimum wage again.  Get involved in the legislative process and let your state representatives know about the real world impact the increase in the minimum wage is having on your business operations.  Are you needing to lay off employees or having to reduce hiring as a result of the minimum wage increase?  This is critical information that you and only you can provide to those legislators who will be making the decisions about the economic future of your business.

Jonathan Mook is a partner in the office of DiMuroGinsberg, P.C.  He can be reached at jmook@dimuro.com.  Colete Fontenot is a legal assistant who provided much valued research assistance in preparing this article.

The Old Dominion Adopts Restrictions on Non-Competes

By: Billy Ruhling

Virginia has always allowed you to impose reasonable restrictions on your employees’ ability to compete after the termination of the employment relationship.  While this right was not unfettered, you could take steps to protect your business by preventing a former employee from taking customers or clients with them upon their departure.  Such agreements were permitted so long as the restrictions were for a reasonable time and scope.  But all of that [is about to change or has changed] for certain of your employees!

The New Law

Effective July 1, 2020, Virginia has adopted a new scheme to protect the right to work of certain workers – even when doing so in direct competition with your business.  The new legislation now prohibits you from entering into or enforcing a non-compete with any “low-wage employee.”  Further, you may not prevent such 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.”

The “Details”

As with all laws, the devil is in the details here.  First, “low-wage” probably does not mean what you may think it means!  Covered employees are those whose average weekly earnings are less than the average weekly wage in the Commonwealth.  As of December, 2019, the average weekly earnings was $1,113 or roughly $50,000 per year.

Second, the law protects more than just employees.  Independent contractors whom you pay at an hourly rate that is less than the median hourly wage in the Commonwealth for all occupations also are generally covered.  That amount is presently $20 per hour.  There is an exclusion to this requirement for your independent contractors, however.  That exclusion is or sales persons who derive their earnings, “in whole or in predominant part, from sales commission, incentives, or bonuses . . . .”

Third, the new statute does provide some protections for your business.  You still have the right to require your employees, even “low-wage” workers, to sign agreements prohibiting them from taking, misappropriating, or sharing your trade secrets or other proprietary/confidential information.

Bottom Line

These changes to Virginia’s general approach to non-competes are significant for all Virginia employers.  If you are planning to have your new employees sign non-compete agreements, you need to make certain that they do not fall into the category of being “low-wage.”  If you are seeking to enforce any existing agreements, you also need to ensure they comply with the new legislation.  You don’t want to run afoul of the new statutory limitations.  That’s because the law allows persons protected by the statute to sue you or any other person who attempts to enforce a prohibited covenant.

To avoid being the subject of a lawsuit, you should consult with experienced employment counsel to review your existing agreements and answer any questions or concerns about whether they comply with the new standards.

Virginia Becomes First Southern State to Ban Hair Discrimination

By:  Jayna Genti

During the 2020 legislative session, Virginia became the first southern state not only to ban LGBTQ discrimination, but also bar hair discrimination across the Commonwealth. This makes Virginia the fourth state behind California, New York, and New Jersey to do so.  As reported in the March issue of the Mid-Atlantic Employment Law Letter, Montgomery County, Maryland (but not the state itself) also has prohibited discrimination based on a person’s hairstyle.

The New Law

The new Virginia law specifically expands the Virginia Human Rights Act (VHRA) to prohibit discrimination based on characteristics historically associated with someone’s race and/or culture.  Under the new law, discrimination “because of race” or “on the basis of race” will now encompass bias that stems from “traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.”

The reason for the law is simple according to Delegate Delores McQuinn, who sponsored the legislation, “A person’s hair is a core part of their identity. “Nobody deserves to be discriminated against simply due to the hair type they were born with, or the way in which they choose to wear it. The acceptance of one’s self is the key to accepting others.”

In signing the legislation into law, Virginia Governor Ralph Northam echoed Ms. Quinn’s remarks: “It’s pretty simple—if we send children home from school because their hair looks a certain way, or otherwise ban certain hairstyles associated with a particular race—that is discrimination.”  The Governor added: “This is not only unacceptable and wrong, it is not what we stand for in Virginia. This bill will make our Commonwealth more equitable and welcoming for all.”

Who’s Covered and When

Like other laws passed in the 2020 General Assembly session, the ban on hair discrimination will take effect on July 1.  Although the VHRA currently applies only to employers with six to14 employees, that limitation also will change as of July 1, 2020.  Under the Virginia Values Act, also passed by the Virginia General Assembly this term, the reach of the VHRA now will cover all employers with six or more employees.

Ensuring Compliance

To make sure you are in compliance with the new law banning hair discrimination, you should act now to assess your workplace grooming and dress standards.  You still continue to enforce non-discriminatory appearance and grooming policies, but make sure those policies don’t prohibit certain types of hairstyles, such as braids, locks and twists.  If you do, you could be charged with using those policies as a proxy for, or to facilitate, discriminatory practices, such as gender or racial discrimination.

An exception may arise if restrictions on hairstyle choices are necessary for certain specific safety reasons.  But, even if you need to maintain certain grooming standards for safety reasons, be careful in the wording of the standard. For example, if long hair poses a safety hazard in the workplace, avoid listing specific types of hairstyles that pose a risk.  Instead, simply state that hair must be shorter than a certain length or secured at all times.

Determining whether you have crossed the line in imposing certain grooming and appearance standards can be tricky to determine.  When in doubt, it always is a good idea to consult with experienced employment counsel to assist you in charting this new and uncertain area of the law.

Jayna Genti is an associate in the office of DiMuroGinsberg, P.C.  She can be reached at jgenti@dimuro.com.

New Virginia Law Significantly Broadens Whistleblower Protection

By Stacey Rose Harris

On July 1, 2020, never-before-seen protections for whistleblowers will take (took) effect in Virginia.  Prior to the enactment of Virginia’s new “Whistleblower Law,” workers had little recourse if their employer terminated them for reporting illegal or improper activity in their workplace.  Previously, their protection had been limited to a few narrow statutory protections and limited common law exceptions to doctrine employment-at-will doctrine.

What Is Protected

Now, the new Whistleblower Law provides broad protections where an employee:

  • makes a good faith report of a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
  • is an employee who is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
  • refuses to engage in a criminal act that would subject the employee to criminal liability;
  • 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; and
  • 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.

What Is Excluded

The Whistleblower Law, however, does not give employees a blank check.  Importantly, the law does not protect an employee:

  • who discloses information that is otherwise protected by law or privilege;
  • who makes false statements that the employee knows, or should know, are not true; and
  • who makes disclosures that violate state or federal law or impair any person’s legally-protected right to confidentiality.

Legal Actions

If an employee is discriminated or retaliated against for engaging in protected activities, the employee must bring a claim within a year of the wrongful action.  The Whistleblower Law applies only to private-sector employers.  Employees of the Commonwealth or its localities who “blow the whistle” already are protected by state law.  Remedies available under the new statute include reinstatement, back pay, lost benefits, and, significantly, attorneys’ fees and costs of bringing the action.

Take Away

All private employers in Virginia should take note of these new worker rights.  Make sure that your managers and supervisors are aware of these developments and even better, document your education efforts as to these changes.  Moreover, if your supervisors or managers recommend that an employee should be disciplined, ask the necessary questions to make sure that the employee cannot claim that he or she was disciplined for engaging in protected activity.  The last thing you want is to run afoul of the rights created by the new Virginia Whistleblower Law.

Virginia Poised to be First in the South to Enact LGBTQ Protections

By:  Jayna Genti

While the Supreme Court is still considering whether Title VII of the 1964 Civil Rights Act applies to lesbian, gay, bisexual, and transgender employees across the nation, the Virginia legislature has moved forward to provide legal protections under state law for this group of Virginians.

By doing so, Virginia will become the first state in the South to enact comprehensive anti-discrimination legislation protecting LGBTQ individuals.  The Virginia Values Act would prohibit discrimination on the basis of sexual orientation and gender identity in housing, employment, credit transactions, and public accommodations.  The legislation also prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, and status as a veteran – some of which already find protection under existing state law.

Who is Affected by the New Law?

The Act affects private employers with six or more employees.  All state and local government employees and school board employees also will be covered under the law.  In addition to prohibiting LGBTQ discrimination, the Act will allow individuals to pursue lawsuits over alleged discrimination.  Those entities “engaged in a pattern or practice of resistance” to the rights guaranteed by the new law also will be subject to suit by the Virginia attorney general’s office.

Importantly, the Virginia Values Act amends the state’s Human Rights Act to allow suits for unlawful discrimination in public accommodations, such as movie theaters, hotels and motels, and other commercial establishments open to the public.  Under current law, there is no cause of action for discrimination in public accommodations.

When the Law Will Take Effect

The Act has strong bipartisan support, and is expected to make it through both the House of Delegates and the Senate before the current regular legislative session adjourns on March 7, 2020.  Governor Ralph Northam has publicly supported the legislation: “It’s past time we protected LGBTQ Virginians from discrimination under the law. This bill will make us stronger and more inclusive of all — I’m proud to support it.”  Thus, Governor Northam is expected to sign the Virginia Values Act within a week after being presented to him.  The new law will take effect July 1, 2020.

Significance of the New Law

Advocates have praised the passage of what they called urgently needed landmark human rights legislation.  “It’s important to know that discrimination is still happening in Virginia. It is time to drive it out,” bill sponsor Senator Adam Ebbin said at a press conference.

Some of Virginia’s largest employers, including Capital One, Dominion Energy and Verizon, also have backed the legislation.  “Passing a comprehensive nondiscrimination law isn’t just the right thing to do – it’s crucial to the state economy,” those companies and more than two dozen others wrote in a letter to legislative leaders. “Because many LGBTQ and non-LGBTQ workers prefer to live and work in communities with nondiscrimination protections,” the companies said, “such a law will give Virginia’s employers tangible advantages in recruitment and retention.”

Opponents have raised concerns about the legislation’s potential impacts on religious freedom.  GOP Senator Jill Vogel, however, said she thought provisions of the Act sufficiently addressed concerns about religious liberty and that she was proud to vote for it.  “I can assure you that if we embrace equality and protect everybody equally under the law, we will be a better community,” Ms. Vogel said as she voiced her support on the floor of the Virginia Senate.

Steps for Compliance

At this point, there are two steps that you can take to be prepared for the new legal protections for LGBTQ employees.  First, review your non-discrimination policies to see whether they state that discrimination on the basis of a person’s LGBTQ status is strictly prohibited.  If you are a federal contractor, you already may have such a policy in place as part of your contract obligations.  If not, it probably is wise to consult with experienced employment counsel to assist you in drafting a policy that complies with the new Virginia law.

Second, conduct training sessions for your supervisors and managers to alert them to their legal obligations to ensure that no adverse action is taken against an employee on the basis of that individual’s LGBTQ status and that the work environment is free of jokes, comments, or other actions that could constitute harassment against LGBTQ workers.  Remember, come July 1st, harassment on the basis of LGBTQ status will be just as illegal under state law as sex or racial harassment.  To underscore the seriousness of the issue, you may want to have your employment attorney conduct the training with you.

It always is best to be prepared well ahead of time for any change in the law, and this especially is true when dealing with this fast evolving area of legal rights for LGBTQ individuals.

Payroll Protection Plan Fraud Follow-Up

By M. Jarrad Wright

The U.S. Department of Justice (“DOJ”) has begun to shift its response to the COVID-19 crisis away from price gauging cases to financial crimes – namely attempts to defraud the federal government’s various relief programs, including the Payroll Protection Plan (“PPP”) which was established as part of the larger Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).  While the CARES Act and PPP provided billions of dollars of economic stimulus and relief to millions of people throughout the country, the relative speed of the programs and the large amounts of dollars involved made such programs targets for fraudulent claims.

In an attempt to identify such claims, the DOJ recently announced that it is using data analytics technology to help identify and investigate individuals and businesses who have made false statements to defraud the government and/or banks. The DOJ has charged fraud cases in several cases around the country involving PPP fraud. These cases include a Texas man who allegedly sought millions of dollars in PPP loans by certifying that he had a business of 250 employees when allegedly no employees worked for his business. In another case, an Arkansas man was alleged to have sought approximately $8 million in PPP loans from multiple banks by providing fraudulent payroll documentation.

While cases involving millions of dollars are headline grabbing, it should be noted that the DOJ has begun looking into cases involving smaller dollar figures. For example, on June 16, 2020, the DOJ charged an Illinois man for allegedly submitting false and fabricated IRS forms and other documents that allegedly overstated payroll amounts in order to obtain a loan of approximately $441,000. According to the DOJ, a comparison between the IRS forms submitted to the bank for the PPP loan and the actual forms at the IRS showed significant differences.

The PPP loan applications require companies and individual to make a variety of certifications such as certifying need for the loan monies but also require presenting significant documentation. While the Small Business Association stated that loans in amounts of less than $2 million “will be deemed to have made the required certification concerning the necessity of the loan request in good faith,” the government investigators are going to continue to pursue other potential sources of fraud including false documentation.

In the weeks and months ahead, the DOJ is likely to continue to investigate such fraudulent cases and then begin to shift its focus into more complex financial fraud cases and more complex violations of certifications made in the PPP loan process. These cases are likely to arise in a variety of contexts and may arise in a variety of ways including referrals from banks, the SBA, even qui tam relaters under the False Claims Act or through the DOJ’s data analytics. Business involved in such cases will likely be faces charges ranging from bank fraud to wire fraud, as well as significant civil liability exposure.

‘sDiMuroGinsberg has years of experience involving complex criminal and civil litigation.  This includes defending people accused of healthcare fraud and pursuing False Claims Act cases.  DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

 

Virginia Pregnancy Protections in the Workplace: What You Need to Know

By: Zachary Deubler

During its 2020 legislative session, the Virginia General Assembly passed a slew of measures providing your employees new and expended workplace protections, while also enhancing the mechanisms by which employees may seek to bring claims against their employers for violating the newly enacted laws. As we discussed at our June 2, 2020 Webinar, these new measures included new protections for LGQBT workers, prohibiting non-competes for “low-wage” workers, and significant increases in Virginia’s minimum wage.

 

Easily lost in these new sweeping measures are the recently strengthened prohibitions on discrimination in the workplace based on pregnancy and pregnancy-related conditions. The Virginia Human Rights Act, similar to Federal law, has long prohibited terminating employees on the basis of pregnancy and “childbirth or related medical conditions.” However, the new legislation known as the Virginia Values Act (VVA) goes much further and creates a private cause of action for discrimination related to these conditions and requires accommodations akin to the process under the federal Americans with Disabilities Act (ADA).

 

Who Is Covered by the VVA and Employee’s Right to Sue?

 

The VVA applies to all employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

 

The VVA grants employees an independent right to sue their employers in state court for discrimination or failure to reasonably accommodate their pregnancy or pregnancy related conditions. For example, an employer that refuses to allow an employee who has been on maternity leave to return to her previous/equivalent position with equal seniority, pay, and other benefits may be found to have engaged in an “adverse action” against the employee.

 

The statute of limitations for filing a lawsuit alleging a violation of the VVA is two years from the date of the unlawful act.  Alternatively, if the employee files a charge of pregnancy discrimination with the Virginia Human Rights Commission or a local human rights agency within two years, the employee can file a lawsuit within 90 days from the final disposition of the charge.  Relief may include: up to one full year of back pay, compensatory damages, attorney’s fees, and injunctive relief.

 

What Are The New Reasonable Accommodations?

 

The VVA defines “reasonable accommodations” as including:

 

  • frequent or longer bathroom breaks,
  • breaks to express breast milk and access to a private location other than a bathroom for the expression of breast milk,
  • acquisition or modification of equipment or access to or modification of employee seating,
  • a temporary transfer to a less strenuous or hazardous position, and
  • assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and unpaid leave to recover from childbirth.

 

As to unpaid leave, the new law states that an employer cannot “require an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the pregnancy, childbirth, or related medical conditions of such employee.”

 

New Proactive Notification Requirement

 

All covered employers must inform employees about the reasonable accommodations and non-discrimination aspects of the new law by displaying a poster in a workplace area visible to all employees as well as in any employee handbook. The same information must be provided to any employee, within 10-days, who gives notice of her pregnancy and any new employees during their on-boarding process.

 

Undue Hardship

 

An area particularly ripe for future litigation is an employer’s claim that an accommodation to a pregnant employee need not be provided because it would be an undue hardship. This exception is similar to that found in the ADA.  Primarily, there are three general factors that can determine whether an accommodation would create an “undue hardship” for the employer: (1) the size of the employer; (2) the nature and cost of the accommodations requested; and (3) nature of the employer’s operation.

 

DiMuroGinsberg Is Here To Help

 

What should you do to make sure that you are in compliance with the VVA and all the other important law mandates that the General Assembly enacted this year:

 

First, if you were not able to join us on June 2, we encourage you to watch our free webinar for employers on the recent changes made by the General Assembly available here.

 

Second, inform your employees of their rights under the VVA, as discussed above;

 

Third, review your existing employee policies and procedures to ensure that they are in accord with your new obligations under the VVA; and

 

Fourth, when in doubt, consult with experienced employment counsel to ensure that your operations and actions do not give rise to a discrimination charge or lawsuit.

 

The attorneys at DiMuroGinsberg are here to assist you in navigating the complexities of the new legal landscape.  We represent employers in Virginia federal and state courts, as well as before federal and state administrative agencies. We also help employers prevent problems from arising by providing employment law compliance counseling, advice and training.

 

Our employment law practice group is led by Jonathan R. Mook, who has over 30 years of experience in employment law and is a nationally recognized authority on the Americans with Disabilities Act. He is the author of two treatises on the ADA published by Matthew Bender Company. Mr. Mook is a frequent lecturer on employment law issues and is a co-editor of the Mid-Atlantic Employment Law Letter published by BLR.

 

If you are in need of advice or representation, please do not hesitate to contact our firm for more information about our employment law services.

 

Virginia Criminal Law Update: What Changes Came as of July 1?

By Zachary Deubler
DiMuroGinsberg, P.C.

In Virginia, the 2020 legislative session brought about some of the largest criminal justice reform measures we have seen passed into law in the Commonwealth for decades. Indeed, these reforms were largely spurred on by criminal justice advocates who took issue with Virginia’s trial-by-ambush approach and the perceived over-criminalization of certain types of behaviors.

The Criminal Practice Group at DiMuroGinsberg has compiled a noncomprehensive list of some of the major legislative changes that may have the biggest impact on both Criminal Defendants and Criminal Practitioners throughout Virginia.

Discovery Reform:

One of the most anticipated changes can be found in the reform of the criminal discovery process. Changes in Rules 3A:11 and 3A:12 were approved by the Supreme Court of Virginia in September 2018 with a 2019 effective date, but implementation was delayed for a year to allow for assessment of the impact of police body camera evidence.

Under the recent rule changes, defense attorneys are given access to witness statements and police reports; before the rule change, the procedure to obtain a copy—if one was given at all—varied by jurisdiction. The amendments also provide for reciprocal exchange of witness lists and include a recommendation that defense lawyers provide expert witness information, now required only of prosecutors.

Moreover, H.B. 813 further indicates that discovery shall be provided within a reasonable amount of time before trial, but that in no case shall it be provided later than (i) 14 days before trial for a misdemeanor in circuit court, (ii) 30 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of 30 years or less, or (iii) 90 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of more than 30 years. The bill also provides a mechanism for redaction of certain personal identifying information and creates a procedure for either party to move the court to enter a protection order with regard to discovery. Finally, the bill grants the court the ability to impose various remedies it deems just if a party fails to comply with any of the requirements.

Crimes

In addition to changing discovery disclosure procedures, the Virginia legislature also took substantial steps in changing/modifying substantive criminal offenses—including changes in the direct and collateral consequences of some crimes. These changes range from the relatively small increase in the Reckless Driving speed limit, to the larger decriminalization of simple possession of marijuana. Of particular importance and a potential game changer, is the ability of defense counsel to inform prospective jurors, during the voir dire, of the range of punishment for a given offense if they should return a guilty verdict. This change in the law is an important first step towards eliminating the “trial penalty” in criminal cases within Virginia.1

  • H.B. 618\ S.B. 179—Hate crimes; gender, disability, gender identity, or sexual orientation; penalty.
    • Adds gender, disability, gender identity and sexual orientation to the categories of victims whose intentional selection for a hate crime involving assault, assault and battery, or trespass for the purpose of damaging another’s property results in a higher criminal penalty for the offense. The bill also eliminates the mandatory minimum terms of confinement for such hate crimes.
  • H.B. 660\ S.B. 286—Deferred dispositions; property crimes; larceny and receiving stolen goods.
    • Provides that a court upon such plea, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him/her on probation subject to terms and conditions for a first offense misdemeanor larceny, provided such person has not previously been convicted of any felony or had a prior deferred disposition for the same offense.
  • H.B. 885—Reckless driving; exceeding speed limit.
    • Raises the threshold for per se reckless driving for speeding from driving in excess of 80 miles per hour to driving in excess of 85 miles per hour. The threshold for per se reckless driving for speeding for driving at or more than 20 miles per hour in excess of the speed limit remains unchanged.
  • H.B. 972\ S.B.2—Possession and consumption of marijuana; penalty.
    • Decriminalizes simple marijuana possession and provides a civil penalty of no more than $25. The bill provides that any violation of simple possession of marijuana shall be charged by a summons in form the same as the uniform summons for motor vehicle law violations and that no court costs shall be assessed for such violations. The bill also provides that a person’s criminal history record information shall not include records of any charges or judgments for such violations and records of such charges or judgements shall not be reported to the Central Criminal Records Exchange. The bill defines “marijuana” to include hashish oil and creates a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use. The bill also (i) makes records relating to the arrest, criminal charge or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances; (ii) prohibits employers and educational institutions from requiring an applicant for employment or admission to disclose information related to such arrest, criminal charge, or conviction; and (iii) prohibits agencies, officials, and employees of the state and local governments from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning such arrest, criminal charge, or conviction. When there is an acquittal, a nolle prosequi is taken, or the charge is otherwise dismissed, the bill allows the person charged with the civil offense to file a petition requesting expungement of the police records and court records related to the charge.
  • H.B. 995\ S.B. 788—Grand larceny; threshold.
    • Increases from $500 to $1,000 the threshold amount of money or value of goods or chattel taken at which the crime rises from petit larceny to grand larceny. The bill increases the threshold by the same amount for the classification of certain property crimes.
  • S.B. 64—Paramilitary activities; penalty.
    • Provides that a person is guilty of unlawful paramilitary activity if such person brandishes a firearm or any air or gas operated weapon or any object similar in appearance while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons. Such unlawful paramilitary activity is punishable as a Class 5 felony.
  • S.B. 144—Protective orders; issuance upon convictions for certain felonies; penalty.
    • Authorizes a court to issue a protective order upon convicting a defendant for an act of violence and upon the request of the victim or the attorney for the Commonwealth on behalf of the victim. The bill provides that the duration of such protective order can be for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The bill provides that a violation of a protective order issued upon a conviction for an act of violence is punishable as a Class 1 misdemeanor.
  • H.B. 34—Refusal of tests; restricted license.
    • Allows a person convicted of a first offense of unreasonable refusal to have samples of his breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license.

Criminal Procedure

  • H.B. 100\ S.B. 325—Voir dire examination of persons called as jurors; criminal case.
    • Allows the court and counsel for either party in a criminal case to (i) ask potential jurors any relevant questions to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case and (ii) inform any potential juror as to the potential range of punishments to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
  • H.B. 909\ S.B.513—Driver’s license suspensions for certain non-driving related offenses.
    • Removes the existing provisions that allow a person’s driver’s license to be suspended (i) when he is convicted of or placed on deferred disposition for a drug offense, (ii) for non-payment of certain fees owed to a local correctional facility or regional jail, and (iii) for shoplifting motor fuel.
  • H.B. 1196\ S.B. 1—Suspension of driver’s license for nonpayment of fines or costs.
    • Removes the requirement that a court suspend the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs.
  • H.B. 1462—Admission to bail; rebuttable presumptions against bail.
    • Eliminates the provision prohibiting a judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of an attorney for the Commonwealth.
  • H.B. 1522—Forfeiture of property used in connection with the commission of crimes; finding of guilt required.
    • Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced.
  • S.B. 439—Driving under the influence; remote alcohol monitoring; penalty.
    • Provides that in the case of an adult offender’s first conviction of driving under the influence when the offender’s blood alcohol content was less than 0.15, upon motion of the offender, the sole restriction of the offender’s restricted driver’s license shall be the prohibition of the offender from operating any motor vehicle not equipped with a functioning, certified ignition interlock system for one year without any violation of the ignition interlock system requirements.
  • S.B. 667—Arrest and prosecution when experiencing or reporting overdoses.
    • Provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance; possession of marijuana; intoxication in public; or possession of controlled paraphernalia if (i) such individual (a) seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, or (b) is experiencing an overdose and another individual seeks or obtains emergency medical attention for him; (ii) such individual remains at the scene of the overdose or at any location to which he or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
  • H.B. 744— Sentencing of juvenile tried as adult.
    • Provides that a court, in the case of a juvenile tried as an adult and convicted of a felony, may depart from any mandatory minimum sentence required by law and suspend any portion of an otherwise applicable sentence.

Firearms

  • H.B. 2\ S.B. 70—Firearm sales; criminal history record information checks; penalty.
    • Requires a background check for any firearm sale. A person who sells a firearm to another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill also provides that a purchaser who receives a firearm from another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill removes the provision that makes background checks of prospective purchasers or transferees at firearms shows voluntary.
  • H.B. 9—Reporting lost or stolen firearms; civil penalty.
    • Requires that, if a firearm is lost or stolen from a person who lawfully possessed it, such person shall report the loss or theft of the firearm to any local law-enforcement agency or the Department of State Police within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft.
  • H.B. 674\ S.B. 240—Firearms; removal from persons posing substantial risk; penalties.
    • Creates a procedure by which any attorney for the Commonwealth or law-enforcement officer may apply to a general district court, circuit court, or juvenile and domestic relations district court judge or magistrate for an emergency substantial risk order to prohibit a person who poses a substantial risk of injury to himself or others from purchasing, possessing, or transporting a firearm.
  • H.B. 812\ S.B. 69—Purchase of handguns; limitation on handgun purchases; penalty.
    • Prohibits any person who is not a licensed firearms dealer from purchasing more than one handgun in a 30-day period and establishes such an offense as a Class 1 misdemeanor.

1 See Generally The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018) available at: https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct

“Ancient Gesture of Insult” Does Not Justify Traffic Stop

By Stacey Rose Harris
DiMuroGinsberg, P.C.

Don’t flip off a traffic cop. But if you do, they can’t pull you over. At least, they can’t pull you over JUST for that. The U.S. District Court for the Western District of Virginia has decided that a police officer was not justified in stopping a vehicle whose passenger flipped him the middle finger. In 2016, Brian Clark had been a witness in a civil proceeding in the Patrick County Courthouse, a Courthouse from which he had been banned except under certain circumstances, as a result of his behavior. Lieutenant Coleman was aware of Clark and had observed him during the case. When Court adjourned, Lieutenant Coleman proceeded to the parking lot of a nearby grocery store to stop and check his messages. The car in which Clark was driving passed him, and as it did, Clark flipped him off. Coleman proceeded to stop the car, and when he radioed dispatch, learned that Clark had outstanding papers to be served on him. Coleman served the papers, and then let Clark go.

Clark sued Coleman for violating his constitutional rights in conducting an illegal stop, arguing that there was not probable cause. Coleman argued that he has never been given the middle finger unless that person was intoxicated, and that was his justification for the stop. However, his testimony that he had seen Clark in court immediately before, where he had not appeared to be intoxicated, contradicted his assertion that he pulled Clark over for such a suspicion. At trial, the jury found that Clark’s rights were not violated. The Court, however, granted his motion to set aside the verdict, as contrary to law, on the grounds that Coleman lacked reasonable suspicion to detain Clark. The Court denied Clark’s motion for a new trial on the issue of damages, and awarded him $1 and attorneys’ fees.

Under well-settled law of the Fourth Amendment, the Court held, any search or seizure must be based on reasonable suspicion to believe the plaintiff had committed or was committing a crime. “Displaying one’s middle finger is not illegal, nor does the gesture ‘on its own create probable cause or reasonable suspicion’” that Clark violated the law. The mere fact that, in Coleman’s experience, he has never been flipped off unless the person stopped is intoxicated, is not enough, particularly when Clark had seen Coleman just minutes before in Court, where he appeared fine. Nor did either exception to “reasonable suspicion” apply, that is, there was no basis for application of the community caretaking doctrine (routine procedures such as impoundment of a vehicle that impedes traffic or entry into a car after an accident to assess passengers’ conditions), nor were there exigent circumstances (emergencies of any nature or danger to public safety).

DiMuroGinsberg has decades of experience in representing parties to proceedings with constitutional issues like this one, including which raises both Fourth Amendment (search and seizure) and First Amendment (freedom of speech and expression) questions. Our attorneys have represented both plaintiffs and defendants subject to these types of claims, and have a depth of experience in a broad array of civil rights cases, including issues like the ones presented here, as well as excessive force and other Section 1983 actions. Reach out to our firm if you would like to speak to someone further about representation in connection with a constitutional rights claim.