Below is a list of a few of the bills that passed in the 2022 General Assembly Session that will become effective as of Friday, July 1st.

Effective today: Virginia Health and Safety Codes Board Repeals COVID-19 Permanent Standard

The 2022 General Assembly Session adjourned Sine Die, Saturday, March 12th. However, they adopted HJ 455 which allowed any legislation still in Conference to be carried over to a 2022 Special Session. The biggest legislation that is included in this group is the Budget. We are still waiting for the Governor to set the date for the pending Special Session, and once that is determined, we will inform members.

The 2022 General Assembly Session is beginning to wind down. They are scheduled to adjourn Sine Die Saturday, March 12th. Below you will find a summary of issues that have seen action in the last week.

 

Click here to view a full list of bills we are tracking.

 

INFORM Act | Grocery Tax | Sales Tax | Paid Leave | Privacy | Employer Mandates | Overtime

 

INFORM Act

House Commerce and Energy Subcommittee #4 laid the bill on the table and the Chairs of House Commerce and Energy, Senate Commerce and Labor, House General Laws, and Senate General Laws are going to send a letter to the Office of the Attorney General to conduct a workgroup in the off-season on this issue, with a report back to the Legislature. This workgroup will consist of industry experts from both brick and mortar and online marketplaces, as well as law enforcement professionals.

SB 341 - Barker - Consumer protection; online marketplace; high-volume third-party sellers. Laid on the table by House Commerce and Energy Subcommittee (6-Y 0-N)

  • Establishes requirements for high-volume third-party sellers, defined in the bill as participants in an online marketplace that have entered into at least 200 discrete sales or transactions for 12 continuous months during the past 24 months resulting in accumulation of an aggregate total of $5,000 or more in gross revenues. The bill requires high-volume third-party sellers to provide identifying information and contact information to the online marketplace and requires the online marketplace to verify the information upon receipt. The bill requires that high-volume third-party sellers make certain conspicuous disclosures to consumers on their product listing pages, with certain limited exceptions. The bill provides that any violation of its provisions is a prohibited practice under the Virginia Consumer Protection Act.

 

Grocery Tax

The Senate and the House have differing versions of this legislation and the issue will end up in conference and be worked out over the coming week.

HB 90 - McNamara - Sales tax; exemption for food purchased for human consumption & essential personal hygiene products. Passed the house with Substitute (80-Y 20-N) – Now before the Senate.

  • Exempts food purchased for human consumption and essential personal hygiene products (the grocery tax) from all state, regional, and local sales taxes. The bill dedicates state sales tax revenue to provide a supplemental school payment to counties and cities. For fiscal year 2023, the payment is the county or city's fiscal year 2022 distribution of revenue from the grocery tax. For fiscal year 2024 and after, the payment is the previous year's payment multiplied by the county or city's local sales tax index, defined in the bill as the ratio by which sales tax revenues in a county or city for the current year exceed the previous year's revenues.

SB 451 - Boysko - Retail Sales and Use tax; exemption for essential personal hygiene products. Passed the House with substitute (98-Y 1-N)

  • Provides a sales and use tax exemption for essential personal hygiene products, defined in the bill as (i) nondurable incontinence products such as diapers, disposable undergarments, pads, and bed sheets and (ii) menstrual cups and pads, pantyliners, sanitary napkins, tampons, and other products used to absorb or contain the menstrual flow. Under current law, such products are taxed at a reduced state sales and use tax rate of 1.5 percent and the standard local rate of one percent. The bill contains technical amendments.

 

Sales Tax

SB 37 - Norment - Sales tax; authorizes additional local tax for constructing, etc., schools in Isle of Wight County,. Laid on the table (defeated) by House Finance Subcommittee (4-Y 3-N)

  • Adds Isle of Wight County to the list of localities that, under current law, are authorized to impose an extra one percent local sales tax. Revenue from the tax may be used only for constructing or renovating schools.

SB 298 - Deeds - Additional local sales and use tax to support schools.  Laid on the table (defeated) by House Subcommittee (4-Y 3-N)

  • Adds the City of Charlottesville to the list of localities that, under current law, are authorized to impose an additional local sales and use tax at a rate not to exceed one percent, with the revenue used only for capital projects for the construction or renovation of schools.

SB 472 - McClellan - Retail sales & use tax, additional local; use of revenues for construction or renovation of schools. Laid on the table (defeated) by House Finance Subcommittee (4-Y 3-N)

  • Allows any county or city to levy a local general retail sales tax and a local use tax at a rate not to exceed one percent as determined by its governing body to provide revenues solely for capital projects for the construction or renovation of schools if such levy is approved in a voter referendum. Under current law, the power to levy such local sales and use taxes for the construction or renovation of schools is limited to the qualifying localities of Charlotte, Gloucester, Halifax, Henry, Mecklenburg, Northampton, Patrick, and Pittsylvania Counties and the City of Danville.

 

 

Overtime

HB 1173 - Ware - Fair Labor Standards Act; overtime, employer liability. Passed out of Senate Commerce and Labor Committee with Substitute and rereferred to Finance and appropriations (13-Y 1-N 1-A)

  • Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.

SB 631 - Barker - Fair Labor Standards Act; overtime, employer liability. Passed out of House Commerce and Energy Committee with Substitute (18-Y 3-N) now on the House Floor.

  • Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.

 

Paid Leave

HB 1156 - Byron - Private family leave insurance. Passed both the House and the Senate, now on its way to the Governor.

  • Establishes family leave insurance as a class of insurance. The bill defines " family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty. Under the bill, family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer. The bill prohibits delivery or issue for delivery of a family leave insurance policy unless a copy of the form and the rate manual showing rates, rules, and classification of risks have been filed with the State Corporation Commission. The bill prohibits an individual certificate and enrollment form from being used in connection with a group family leave insurance policy unless the form for the certificate and enrollment form has been filed with the Commission. The bill provides that "life and annuities insurance agent" means an agent licensed in the Commonwealth to sell, solicit, or negotiate, among other types of insurance, family leave-insurance, on behalf of insurers licensed in the Commonwealth.

SB 15 - Favola - Insurance; paid family leave. Passed both the House and the Senate.

  • Establishes paid family leave as a class of insurance. The bill defines "paid family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces of the United States. Under the bill, paid family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer.

SB 352 - Surovell - Paid sick leave; health care providers and grocery store workers. Laid on the table by House Commerce and Energy Subcommittee (4-Y 2-N)

  • Requires employers to provide paid sick leave to health care providers, grocery store workers, and home health workers who provide agency-directed services. Under current law, employers are only required to provide paid sick leave to home health workers who provide consumer-directed services. The bill removes requirements that workers work on average at least 20 hours per week or 90 hours per month to be eligible for paid sick leave. Additionally, the bill provides that certain health care providers may waive their right to accrue and use paid sick leave and provides an exemption for certain other health care providers.

 

Privacy

SB 534 - Marsden - Consumer Data Protection Act; enforcement, abolishes Consumer Privacy Fund. Passed out of House Commerce and Energy Committee (22-Y 0-N) and is now on House Floor.

  • Authorizes the Attorney General to pursue actual damages to consumers to the extent they exist if a controller or processor of the personal data of Virginians continues to violate the Consumer Data Protection Act following a 30-day cure period offered by the Attorney General or breaches an express written statement provided to the Attorney General. Political organizations are classified as nonprofit organizations and thus exempt from the Act. The bill specifies that the Attorney General may deem whether a cure under the provisions of the Act is possible for consumers. In addition, the bill abolishes the Consumer Privacy Fund and all civil penalties, expenses, and attorney fees collected from enforcement of the Act shall be deposited into the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.

HB 714 - Hayes - Consumer Data Protection Act; enforcement, abolishes Consumer Privacy Fund. Passed out of Senate Finance and Appropriations Committee (13-Y 1-N)

  • Authorizes the Attorney General to pursue actual damages to consumers to the extent they exist if a controller or processor of the personal data of Virginians continues to violate the Consumer Data Protection Act following a 30-day cure period offered by the Attorney General or breaches an express written statement provided to the Attorney General. Political organizations are classified as nonprofit organizations and thus exempt from the Act. The bill specifies that the Attorney General may deem whether a cure under the provisions of the Act is possible for consumers. In addition, the bill abolishes the Consumer Privacy Fund and all civil penalties, expenses, and attorney fees collected from enforcement of the Act shall be deposited into the Regulatory, Consumer Advocacy, Litigation, and Enforcement Revolving Trust Fund.

 

Employer Mandates

SB 271 - Ebbin - Living organ donors; discrimination prohibited, unpaid leave, civil penalty. (S) Rereferred to Finance and Appropriations. On the House Floor

  • Prohibits any person from refusing to insure, refusing to continue to insure, or limiting the amount or extent of life insurance, disability insurance, or long-term care insurance coverage available to an individual or to charge an individual a different rate for the same coverage based solely and without any additional actuarial risks upon the status of such individual as a living organ donor. The bill requires that an employer that employs 15 or more employees provide eligible employees with (i) up to 60 business days of unpaid organ donation leave in any 12-month period to serve as an organ donor and (ii) up to 30 business days of unpaid organ donation leave in any 12-month period to serve as a bone marrow donor. The bill requires the employer to restore the employee's position following the leave, to continue to provide coverage for the employee under any health benefit plan, and to pay the employee any commission earned prior to the leave. The bill prohibits the employer from taking retaliatory action against the employee for taking organ donation leave. The bill requires the Commissioner of Labor and Industry to enforce its provisions and provides for civil penalties for violations of its requirements.
  • second violation, and $4,000 for a third or subsequent violation.

SB 407 - Dunnavant - Disability insurance; disability arising out of childbirth. (S) Reported from Senate Commerce and Labor Committee. Failed to Report out of House Commerce and Energy Subcommittee.

  • Requires each insurer proposing to issue individual or group accident and sickness insurance policies providing short-term disability income protection coverage whose policies provide coverage for short-term disability arising out of childbirth to provide coverage for a payable benefit of at least 12 weeks following childbirth.

SB 447 - Boysko - Wage or salary history inquiries; prohibited, civil penalty. Laid on the table (defeated) by House Commerce and Energy Subcommittee (6-Y 4-N)

  • Prohibits a prospective employer from (i) seeking the wage or salary history of a prospective employee; (ii) relying on the wage or salary history of a prospective employee in determining the wages or salary the prospective employee is to be paid upon hire; (iii) relying on the wage or salary history of a prospective employee in considering the prospective employee for employment; (iv) refusing to interview, hire, employ, or promote a prospective employee or otherwise retaliating against a prospective employee for not providing wage or salary history; and (v) failing or refusing to provide a prospective employee the wage or salary range for the position for which the prospective employee is applying prior to discussing compensation and at any time upon the prospective employee's request. The bill establishes a cause of action for an aggrieved prospective employee or employee and provides that an employer that violates such prohibitions is liable to the aggrieved prospective employee or employee for statutory damages between $1,000 and $10,000 or actual damages, whichever is greater, reasonable attorney fees and costs, and any other legal and equitable relief as may be appropriate. The bill also provides for civil penalties for violations not to exceed $1,000 for a first violation, $2,000 for a second violation, and $4,000 for a third or subsequent violation.

SB 494 - McClellan - Virginia Human Rights Act; nondiscrimination in employment; definition of employer. House General Laws Subcommittee recommends reporting and referring to House Commerce and Energy Committee (7-Y 1-N)

  • Amends the definition of "employer" to mean a person employing five or more employees, instead of 15 or more employees under current law, for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. The bill provides that a person claiming to be aggrieved by an unlawful discriminatory practice may file a written complaint with the Division of Human Rights within two years of the occurrence of the alleged unlawful discriminatory practice and that an aggrieved person who has been provided notice of his right to file a civil action for such grievance may do so within one year of receiving such notice or within two years after the alleged discriminatory practice occurred, whichever is later. The bill also changes a court's award of reasonable attorney fees and costs to a successful plaintiff from discretionary to mandatory.

 

 

 

In this article:
Budget Update
Accelerated Sales Tax (AST) | Unemployment Insurance Fund | Rebuild Virginia | Polystyrene Ban | Grocery Tax

 

Legislation Updates:
Minimum Wage | Nonpayment of Wages | Paid Leave | Overtime

 

 

 

Budget

Both the House and the Senate released committee-approved amendments to the introduced budgets over the weekend. Any differences between the two will have to be worked out in Conference Committee over the coming weeks.

Below is a summary of a few of the key budget-related issues to the retail industry. You can find the full list of both Senate and House Committee Approved Amendments to the introduced Budget here.

 

Accelerated Sales Tax (AST)

The House budget includes an amendment that eliminates AST in the fiscal year 2022. The Senate budget did not include this amendment, so it still eliminates AST in the fiscal year 2023. (Item 3-5.06 #1h)

 

Unemployment Insurance Fund

The House budget includes an amendment that deposits $180.0 million of remaining federal American Rescue Plan Act funds into the Unemployment Insurance (UI) Trust Fund in order to eliminate the fund builder UI tax for all employers in tax year 2023. (Item 479.20 #2h)

The House also included an amendment that instructs the VEC to exclude the Unemployment Insurance fund builder tax from an Employer’s 2023 UI Tax rate. (Item 370 #1h)

The Senate included an amendment that ensures that the Unemployment Trust Fund’s fund building rate shall be set for Calendar Year 2023 at a rate not to exceed the rate in effect for Calendar Year 2020. (Item 370 #7s)

 

Rebuild Virginia

There is an amendment in the House budget to use ARPA funds to make a deposit into Rebuild Virginia which is anticipated to fund all remaining eligible applications that were submitted prior to November of 2020. However this was not found in the Senate budget, so it will need to be worked out in conference if this remains in the final budget adopted by both Bodies. (Item 479.20 #1h)

 

Polystyrene Ban

Both the House and the Senate included amendments to delay the prohibition on the use of polystyrene containers by 5 years, until July 1, 2030. (Item 377 #1h and Item 377#1s)

 

Grocery Tax

Both the House and the Senate introduced amendments on this issue. The House amendment completely eliminates the grocery tax (Item 4-14 #3h), and the Senate amendment eliminates only the State portion (1.5%) of the grocery tax (Item 4-14 #1s).

 

Legislation:

 

Minimum Wage

HB 296 - McNamara - Minimum wage; removes certain provisions relating to increasing state wage. Passed by indefinitely (defeated) by Senate Commerce and Labor Committee (11-Y 4-N)

  • Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.

HB 320 - Freitas - Minimum wage; removes certain provisions relating to increasing state wage. Passed by indefinitely (defeated) by Senate Commerce and Labor Committee (12-Y 3-N)

  • Repeals certain provisions of the Code of Virginia related to increasing the state minimum wage to more than $11.00 per hour. The bill also repeals provisions related to increasing the state minimum wage based on an annual adjusted minimum wage determined by the Department of Labor and Industry.

HB 1040 - Scott, P.A. - Minimum wage; small employers. Passed by indefinitely (defeated) by Senate Commerce and Labor Committee (12-Y 3-N)

  • Exempts employers that are individuals or entities with 10 or fewer employees from the state minimum wage requirements.

 

Nonpayment of Wages

HB 889 - Kilgore - Nonpayment of wages; defense of contractor. Passed out of Senate Commerce and Labor Committee with Substitute (14-Y 1-N)

  • Provides that a contractor, regardless of tier, has a valid defense to a claim for nonpayment of wages if he obtains a written certification from the subcontractor stating that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor's knowledge, all sub-subcontractors below the subcontractor, regardless of tier, have similarly paid their employees all such wages.

SB 538 - Peake - Nonpayment of wages; defense of contractor. Passed out of House Commerce and Energy Committee with Substitute (14-Y 8-N)

  • Provides that a contractor, regardless of tier, has a valid defense to a claim for nonpayment of wages if he obtains a written certification from the subcontractor stating that (i) the subcontractor and each of his sub-subcontractors has paid all employees all wages due for the period during which the wages are claimed for the work performed on the project and (ii) to the subcontractor's knowledge, all sub-subcontractors below the subcontractor, regardless of tier, have similarly paid their employees all such wages.

 

Paid Leave

HB 1156 - Byron - Private family leave insurance. Passed out of Senate Commerce and Labor Committee (15-Y 10-N)

  • Establishes family leave insurance as a class of insurance. The bill defines " family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member who is a service member is on active duty or has been notified of an impending call or order to active duty. Under the bill, family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer. The bill prohibits delivery or issue for delivery of a family leave insurance policy unless a copy of the form and the rate manual showing rates, rules, and classification of risks have been filed with the State Corporation Commission. The bill prohibits an individual certificate and enrollment form from being used in connection with a group family leave insurance policy unless the form for the certificate and enrollment form have been filed with the Commission. The bill provides that "life and annuities insurance agent" means an agent licensed in the Commonwealth to sell, solicit, or negotiate, among other types of insurance, family leave insurance, on behalf of insurers licensed in the Commonwealth.

SB 15 - Favola - Insurance; paid family leave. Passed out of House Commerce and Energy Committee (22-Y 0-N)

  • Establishes paid family leave as a class of insurance. The bill defines "paid family leave insurance" as an insurance policy issued to an employer related to a benefit program provided to an employee to pay for the employee's income loss due to (i) the birth of a child or adoption of a child by the employee; (ii) placement of a child with the employee for foster care; (iii) care of a family member of the employee who has a serious health condition; or (iv) circumstances arising out of the fact that the employee's family member is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces of the United States. Under the bill, paid family leave coverage may be written as an amendment to a group disability income policy, included in a group disability income policy, or written as a separate group policy purchased by an employer.

 

Overtime

HB 1173 - Ware - Fair Labor Standards Act; overtime, employer liability. Reported from Senate Commerce and Labor Committee with a Substitute and Referred to Senate Finance (13-Y 1-N 1-A)

  • Replaces the current provisions of the Virginia Overtime Wage Act with the provision that any employer that violates the overtime wage requirements of the federal Fair Labor Standards Act, and any related laws and regulations, shall be liable to its employee for remedies or other relief available under the Fair Labor Standards Act.