General Assembly 2021
We just wrapped up the second full week of the 2021 General Assembly Session. Over the last week several issues that impact our members have been heard. We expect this week to be even more eventful for the Retail Industry. Below you will find a breakdown of the major issues that were acted on last week. To find the full list of legislation that we are tracking, click here.
As you saw in our report last week, several paid leave bills have been introduced this session in both the House and the Senate. Senate Commerce and Labor Committee heard all of the bills on the issue, other than SB 1159 which went by for the day. The only bill that passed so far was Senator Favola’s study on the sale of individual and group paid leave plans in Virginia. Senator Boysko’s legislation, which would have established a Paid Family and Medical Leave Insurance program was defeated.
Requires employers with a sick leave program to allow an employee to use his or her sick leave for the care of an immediate family member. The measure applies only to employers that have 25 or more employees and that provide paid sick leave that allows an employee to be absent from work in the event of the employee's own incapacity, illness, or injury. The measure applies only to employees who work at least 30 hours per week, and it caps the amount of sick leave that may be used for the care of immediate family members at five days per calendar year.
- SB 1219 - Favola - Bureau of Insurance; paid family leave; report. Passed the Senate, will now be heard in the House.
Directs the State Corporation Commission's Bureau of Insurance (the Bureau) to review and make recommendations, including any necessary statutory and regulatory changes, to authorize the State Corporation Commission to approve the sale of individual and group paid family leave plans in Virginia.The bill requires the Bureau to also identify options and make recommendations for encouraging or incentivizing employers to voluntarily offer 12 weeks of paid family leave. The bill requires the Bureau to convene a stakeholder group to participate in the process, which is required to include representatives from the insurance industry and the business community, advocates for paid family leave, and other interested parties.The bill requires the Bureau to report its findings and recommendations to the Senate Committees on Commerce and Labor and Finance and Appropriations and the House Committees on Labor and Commerce and Appropriations by November 30, 2021.
Requires the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2024. Under the program, benefits are paid to eligible employees for family and medical leave.Funding for the program is provided through premiums assessed to employers and employees beginning in 2023. The amount of a benefit is 80 percent of the employee's average weekly wage, not to exceed 80 percent of the state weekly wage, which amount is required to be adjusted annually to reflect changes in the statewide average weekly wage.The measure caps the duration of paid leave at 12 weeks in any application year. The bill provides self-employed individuals the option of participating in the program.
Equal Pay Bill
Senator Boysko’s Equal Pay bill was defeated in Senate Commerce and Labor by a pretty substantial margin. This legislation was extremely broad in the way it was enforced and what it applied to, and would have created a huge mandate on businesses across Virginia. You can find a full summary of the legislation below.
- SB 1228 - Boysko - Virginia Equal Pay Act; civil penalties. Passed by indefinitely (defeated) in Senate Commerce and Labor Committee.
Prohibits public and private employers from discriminating between employees on the basis of membership in a protected class in the payment of wages or other compensation, including benefits, by paying wages or other compensation to employees who are members of a protected class at a rate less than the rate at which it pays wages or other compensation to employees who are not members of the protected class for substantially similar work.The measure also prohibits an employer from discriminating between employees by providing less favorable employment opportunities on the basis of membership in a protected class, limiting an employee's right to discuss wages, relying on the wage history of a prospective employee in considering the prospective employee for employment or determining the wages that the prospective employee is to be paid by the employer upon hire, or taking certain retaliatory actions against an employee.The measure also establishes criteria for when wage differentials between employees are permitted, but requires an employer to (i) provide a prospective employee with the wage range for the position for which the prospective employee is applying upon request or prior to inquiring about the prospective employee's wage expectations or providing an offer of compensation and (ii) maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment for a period of three years.The measure gives an employee who is the subject of a violation a right of action to recover, for certain violations, the greater of compensatory damages or $10,000, liquidated damages, punitive damages, and attorney fees. Violations are also subject to civil penalties.
Delegate Carr’s legislation to ban the use of single-use expanded polystyrene food service containers was back again this year. You may remember that it passed the General Assembly last year, but it contained a reenactment clause, which means it must pass the General Assembly again this year for it to become effective. This legislation creates a burdensome and costly ban for the food service industry, which is struggling due to the COVID-19 Pandemic.Many restaurants that have never provided take out for customers, have now had to pivot to that model in an effort to survive this economic crisis. Instituting a ban on this product will cause these restaurants to incur even more costs in order to sustain their take-out service. You can find a full summary of the legislation below.
- HB 1902 - Carr - Expanded polystyrene food service containers; prohibition, civil penalty. Passed the House, will now be heard in Senate Agriculture, Conservation and Natural Resources.
Prohibits the dispensing by a food vendor of prepared food to a customer in a single-use expanded polystyrene food service container, as defined in the bill. The bill requires certain chain restaurants to stop using such containers by July 1, 2023, and sets the date for compliance by all food vendors as July 1, 2025.The bill exempts nonprofit organizations from the definition of "food vendor" and provides a process by which a locality may grant consecutive one-year exemptions to individual food vendors on the basis of undue economic hardship.The bill provides a civil penalty of not more than $50 for each day of violation, to be collected in a civil action brought by the Attorney General or the relevant locality. The penalties collected are to be deposited in the Litter Control and Recycling Fund or to the treasury of the relevant locality, as appropriate. A portion of the penalties deposited in the Fund are to be used for public information campaigns to discourage the sale and use of expanded polystyrene products.Finally, the bill directs the Department of Environmental Quality to post to its website information on compliance and the filing of complaints. This bill is a reenactment of Chapter 1104 of the Acts of Assembly of 2020.
Mandatory Retirement Program
Delegate Torian’s legislation to create a State run retirement program has passed House Appropriations Committee and will now be heard on the House floor. This legislation requires all employers, with five or more employees, and who do not offer an eligible retirement program, to participate.The bill was amended in full committee to make it clear that participating employers will not be required to contribute. Employees of participating employers, will be automatically enrolled in the program unless they opt out. If this bill passes, enrollment in the program will begin no later than July 1, 2023. You can find a full summary of the legislation below.
Directs the governing board of the Virginia College Savings Plan (the Board) to establish an automatic enrollment payroll deduction individual retirement account (IRA) retirement savings program, to be known as the VirginiaSaves Program (the Program). The Board shall administer the Program and develop requirements, procedures, and guidelines for the Program, including default contribution rates, procedures for enrollment and withdrawal, and procedures for noncompliance. Moneys in the Program shall be invested in a manner deemed appropriate by the Board.
Participation in the Program is mandatory for eligible employers, defined in the bill as self-employed individuals, sole proprietors, and nongovernmental employers having five or more employees that do not offer a qualified retirement plan to their employees. Each eligible employee, defined generally as an individual employed by an eligible employer, shall be enrolled in the Program unless the employee elects not to participate in the Program.
The bill contains provisions limiting the liability of the Board, the Plan, and the Commonwealth or any of its political subdivisions, for obligations associated with the Program. The Commonwealth shall have no duty or liability to any party for the payment of any retirement savings benefits accrued by any individual under the Program.Participating employers shall not (i) have any liability for an employee's decision to participate in or opt out of the Plan, (ii) be a fiduciary over the Program, or (iii) have any liability or responsibility related to the operation of the Program.
The Program shall be established, and enrollment shall begin, no later than July 1, 2023.
Delegate Carter’s legislation regarding the discharge or retaliatory actions against employees who have filed or intend to file a Workers Compensation claim is now on the House Floor. The concern with this legislation is that it could cause an issue for employers who are disciplining an employee for poor performance, but just happen to have filed a Worker’s Compensation Claim. You can find a full summary of the legislation below.
- HB 1754 - Carter - Employer or other person; retaliatory discharge of employee prohibited (Passed House Labor and Commerce Committee, and is now on the House Floor)
Prohibits an employer or other person from discharging or taking other retaliatory action against an employee if such action is motivated by the knowledge or belief that the employee has filed a claim or taken or intends to take certain actions under the Virginia Workers' Compensation Act.Currently, retaliatory discharges are prohibited only if the employer discharges an employee solely because the employee has taken or intends to take such an action.