News

We wrapped up week three of the 2022 General Assembly Session and several issues important to the Retail Industry have started to make their way through the legislative process. Below is a summary of key legislation that has had action in the last week.

To view our complete tracking list, please click here.

Minimum Wage | Paid Leave | Conformity | DRAM Shop | Employer Mandates | Mandatory Opt-Out for Automatic Renewal | Workers Compensation | Other Tax Issues | Limited Liability Companies | Permit Issues | COVID-19 | ABC | Small Business | Privacy | Environmental | Nonpayment of Wages | Overtime

Minimum Wage

HB 296 - McNamara - Minimum wage; removes certain provisions relating to increasing state wage. On the House Floor

• 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. On the House Floor

• 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.

Paid Leave

Several pieces of legislation have been introduced on the topic of paid leave. Many of them mandate paid leave for employers. However, the legislation introduced by Senator Favola creates a class of insurance for family leave. This policy would be available for employers to provide for employees as a part of their benefits program if they so choose, but it would not be mandated. This is an option for businesses that cannot afford to offer a robust paid family leave program individually but would like to be able to provide such benefits for their employees. Delegate Byron is carrying the companion bill in the House, and it should be heard in Committee later this week.

SB 15 - Favola - Insurance; paid family leave. Recommended by Subcommittee to report 3-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.

SB 1 - Boysko - Paid family and medical leave program; Virginia Employment Commission required to establish. Recommend by Subcommittee that the bill be over for the year 3-Y 0-N

• Requires the Virginia Employment Commission to establish and administer a paid family and medical leave program with benefits beginning January 1, 2025. 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 2024. 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.

Conformity

Delegate Byron is carrying the 2022 Conformity legislation. As introduced the bill also dealt with the PPP deduction for taxable year 2020. However, an amendment was offered in House Appropriations Committee that removed that portion of the bill. This was done because there is an emergency clause on the legislation which requires an 80% vote in favor to pass. There will still be an effort to deal with taxable year 2020 deductibility cap in other legislation that does not require an emergency clause.

HB 971 - Byron - Commonwealth's taxation system; conformity with the Internal Revenue Code, etc. Passed out of Appropriations 22-Y 0-N with amendments

• Advances Virginia's date of conformity with the Internal Revenue Code from December 31, 2020, to December 31, 2021. The bill also deconforms from provisions of the (i) federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) related to the net operating loss limitation and carryback, a loss limitation applicable to taxpayers other than corporations, the limitation on business interest, and certain loan forgiveness and other business financial assistance and (ii) federal American Rescue Plan Act related to restaurant revitalization grants and emergency injury disaster loans received for taxable years beginning before January 1, 2021. The bill also increases from $100,000 to $1 million the maximum individual and corporate income tax deduction or subtraction, as applicable, for Rebuild Virginia grants and certain amounts related to Paycheck Protection Program loans for taxable year 2020. The bill contains an emergency clause.

DRAM Shop

SB 230 - Hanger - Liability for sale of alcohol to an impaired customer; injury to another person. Rolled into SB555

SB 555 - Obenshain - Alcohol; liability for sale to an underage person. Passed out of Senate Judiciary subcommittee 4-Y 4-N, will now be heard in Full Committee

• Creates a cause of action against an alcoholic beverage control retail licensee who sells alcohol to an underage person who was visibly intoxicated if the consumption of the alcohol caused or contributed to an injury to person or property while the underage person operated a motor vehicle. The plaintiff must prove such negligence by a clear and convincing evidence standard.

Employer Mandates

SB 244 - Hashmi - Organ donors; unpaid leave, civil penalty. (S) Rolled into SB271 by Senate Commerce and Labor (13-Y 2-N)

• Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.

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

• 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.

SB 494 - McClellan - Virginia Human Rights Act; nondiscrimination in employment, definition of employer. (S) Passed the Senate 21-Y 19-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 a 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 courts award of reasonable attorney fees and costs to a successful plaintiff from discretionary to mandatory.

SB 447 - Boysko - Wage or salary history inquiries; prohibited, civil penalty. Subcommittee recommends report with delayed enactment of 1 year (2-Y 1-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.

Mandatory Opt-Out for Automatic Renewal

HB 78 - Davis - Automatic renewal or continuous service offer to consumer; cancellation and online opt-out. Passed the House 99-Y 0-N

• Requires that the supplier of automatic renewals or continuous service offers that include a free trial notify the consumer of the automatic renewal seven days prior to expiration of the free trial and obtain the consumer's affirmative consent to the automatic renewal beyond the trial period. The bill also requires that suppliers of automatic renewals or continuous service offers through an online website must make available a conspicuous online option to cancel a recurring purchase of a good or service within the website by which such purchase was made.

Workers Compensation

SB 226 - McPike - Workers' compensation; notice to employees. Passed out of Commerce and Labor 12-Y 2-N 1-A and is now on Senate Floor

• Requires each employer subject to the Virginia Workers' Compensation Act to provide notice to covered employees of the employees' right to dispute a claim through the Virginia Workers' Compensation Commission. Such notice must include specific text as included in the bill. The bill also provides that an employer who fails to provide such notice may be subject to the civil penalty provisions of the Virginia Workers' Compensation Act.

HB 730 - Ward - Workers' compensation; failure to market residual capacity. (H) Subcommittee recommends laying on the table (6-Y 4-N)

• Provides that an employee is not barred from receiving workers' compensation benefits due to a failure to market residual work capacity if credible evidence supports that the employee (i) is reasonably unemployable based upon age, education, work history, or medical conditions or (ii) is employable in some capacity and has registered with the Virginia Employment Commission.

HB 1002 - Guzman - Workers' compensation; injuries caused by repetitive and sustained physical stressors. (H) Subcommittee recommends laying on the table (6-Y 4-N)

• Provides that, for the purposes of the Virginia Workers' Compensation Act, "occupational disease" includes injuries from conditions resulting from repetitive and sustained physical stressors, including repetitive and sustained motions, exertions, posture stress, contact stresses, vibration, or noise. The bill provides that such injuries are covered under the Act. Such coverage does not require that the injuries occurred over a particular time period under the bill, provided that such a period can be reasonably identified.

Other Tax Issues

SB 25 - Ruff - Cigarette tax, local; tax increase payment on unsold inventory. (S) passed Senate (40-Y 0-N)

• Requires any locality that increases its cigarette tax rate to allow, for one calendar year after the increase, a person with unsold inventory to pay the tax increase on the unsold inventory by filing a return, rather than requiring the use of a stamp or meter impression. The bill imposes a duty on regional cigarette tax boards to effectuate the policy.

HB 267 - McNamara - Taxes, local; surplus revenues. (H) Reported from Counties, Cities and Towns Committee 22-Y 0-N

• Grants localities permissive authority to return surplus personal property tax revenues to taxpayers. Under current law, localities may return only surplus real property tax revenues.

Limited Liability Companies

HB 309 - Rasoul - Limited liability companies; prepayment of annual registration fees. (H) Passed the House 99-Y 0-N

• Permits domestic and foreign limited liability companies to prepay annual registration fees for two or three years. Under the bill, a domestic or foreign limited liability company must make the election to prepay its annual registration fees before its annual registration fee would otherwise be due and seek approval from the State Corporation Commission to engage in prepayment for two or three years. The bill provides that such optional prepayment does not apply to the initial annual registration fees assessed against a limited liability company that is newly formed or recently converted from another entity. The bill requires that, if applicable, the Commission provide notice of this prepayment option to a foreign or domestic limited liability company that has failed to pay its annual registration fee as a method of avoiding future delinquencies.

Permit Issues

SB 32 - Marsden - Overweight vehicle permits; increases maximum extension of existing weight limits. (S) Stricken at request of Patron in Transportation (15-Y 0-N)

• Increases from five percent to 10 percent the maximum extension of existing weight limits authorized by an overweight vehicle permit. The bill retains the limit of 84,000 pounds and the maximum weight limit on interstate highways.

HB 837 - Wilt - Food and drink law; permitting requirements. (H) Subcommittee recommends reporting with amendments (10-Y 0-N)

• Requires any food manufacturer, food storage warehouse, and retail food establishment to obtain a permit from the Commissioner of the Department of Agriculture and Consumer Services prior to operating. Any such entity issued a permit would be exempt from any other license, permit, or inspection required for the sale, preparation, or handling of food. The bill requires the Commissioner to notify such entities of the reason for denial of a permit and requires that any denial, suspension, or revocation of a permit be carried out in accordance with the Administrative Process Act.

COVID-19

SB 189 - Chase - Employer-mandated vaccinations for COVID-19; discrimination prohibited, civil penalties. (S) Passed by indefinitely in Commerce and Labor (12-Y 2-N)

• Prohibits an employer from requiring its employees to receive a vaccine for the prevention of COVID-19. The bill prohibits an employer from discrimination against an employee because the employee has or has not received a vaccine for the prevention of COVID-19. The bill also provides for civil penalties not to exceed $10,000 by an employer with fewer than 100 employees or $50,000 by an employer with 100 or more employees for each violation of the bill's provisions.

SB 548 - Chase - Virginia Human Rights Act; nondiscrimination in places of public accommodation; COVID-19. (S) Failed to report (defeated) in General Laws and Technology (7-Y 8-N)

• The bill prohibits discrimination in public accommodations on the basis of an individual as having received, received in part, or not received a vaccine for the prevention of COVID-19.

SB 582 - Chase - Virginia Human Rights Act; nondiscrimination in places of public accommodation. (S) Passed by indefinitely (defeated) in General Laws and Technology (8-Y 6-N)

• Prohibits discrimination in places of public accommodations including public and private elementary and secondary schools and institutions of higher education and certain private establishments because the individual is or is not wearing a face covering for the purpose of preventing the transmission of COVID-19.

ABC

SB 619 - Cosgrove - Alcoholic beverage control; food-to-beverage ratio. (S) Stricken at request of Patron in Rehabilitation and Social Services (15-Y 0-N)

• Provides an alternative to the food-to-beverage ratio for mixed beverage restaurant licensees by allowing such licensees to meet applicable food sale requirements by demonstrating at least $10,000 in monthly food sales.

HB 328 - Freitas - Alcoholic beverage control; retail privatization of government stores. (H) Subcommittee recommends laying on the table (8-Y 0-N)

• Provides for the issuance of a "package store" license to authorize the retail sale of alcoholic beverages for off-premises consumption. The bill provides that persons holding a retail off-premises wine and beer license are eligible to obtain a package store license. The bill also requires the Board of Directors of the Virginia Alcoholic Beverage Control Authority (the Board) to dispose of all real estate used as government stores and to terminate leased property upon which the Board has operated a government store. The bill requires the Board to complete an implementation study by January 1, 2023, on how it will privatize government stores. The bill directs the Board to adopt emergency regulations to implement the provisions of the bill. The bill contains numerous technical amendments.

HB 426 - Bulova - Alcoholic beverage control; delivery of alcoholic beverages, third-party delivery license. (H) Reported from General Laws with substitute (21-Y 1-N), Currently on the House Floor

• Creates a third-party delivery license that authorizes the licensee to deliver alcoholic beverages purchased by consumers from other retail licensees. The bill establishes conditions for the issuance of third-party delivery licenses, imposes eligibility requirements for delivery personnel, and sets forth requirements for a delivery to be made by such delivery personnel. The bill imposes a $2,500 fine for first-time violations of the delivery requirements and a $5,000 fine for second and subsequent violations. The bill also establishes container requirements for certain alcoholic beverages sold for off-premises consumption or delivery. The bill requires that such alcoholic beverages, if not contained in the manufacturer's original sealed container, (i) be enclosed in a container that has no straw holes or other openings and is sealed in a manner that allows a person to readily discern whether the container has been opened or tampered with; (ii) display the name of the licensee from which the alcoholic beverages were purchased; (iii) be clearly marked with the phrase "contains alcoholic beverages"; (iv) have a maximum volume of 16 ounces per beverage for certain beverages; and (v) be stored in the trunk of the vehicle, in an area that is rear of the driver's seat, in a locked container or compartment or, in the case of delivery by bicycle, in a compartment behind the bicyclist during delivery. The bill also excludes from the rebuttable presumption in current law that a person is consuming alcohol while driving any person who is delivering an alcoholic beverage in accordance with the provisions of the bill. The bill directs the Virginia Alcoholic Beverage Control Authority to collect data regarding the compliance of third-party delivery licensees with the provisions of the bill and report such data to the Chairmen of the House Committee on General Laws and the Senate Committee on Rehabilitation and Social Services by November 1, 2023. The bill extends from July 1, 2022, to July 1, 2024, the sunset on prior legislation that allowed certain licensees to sell mixed-beverages for off-premises consumption.

HB 1251 - Fowler - Alcoholic beverage control; operation of government stores, sale of nonalcoholic spirits. (H) Reported from General Laws (22-Y 0-N), Currently on the House Floor

• Allows government stores of the Virginia Alcoholic Beverage Control Authority to sell nonalcoholic spirits.

Small Business

HB 155 - March - Small Business and Supplier Diversity, Department of; business permitting program, etc. (H) Subcommittee recommends striking from docket (7-Y 0-N)

• Requires the Department of Small Business and Supplier Diversity, in consultation with regulatory agencies, to make a reasonable estimation of the time required of a small business to compile information and submit an application for the comprehensive permit and for each permit not included in the comprehensive permitting program. The bill requires the Department to include in the estimation an aggregated time required estimation for each type of business and to publish the estimations on its website and update its information as necessary based on information from regulatory agencies with regard to policy and regulatory changes affecting permitting.

Privacy

HB 381 - Davis - Consumer Data Protection Act; data deletion request. (H) Subcommittee recommends reporting (8-Y 0-N)

• Authorizes a controller of personal data to treat a consumer request to delete data obtained by a third party about a consumer as a request to opt the consumer out of the processing of that data for (i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

Environmental

HB 647 - Carr - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

• Establishes the Packaging Stewardship Program, administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program. The bill also establishes a Stewardship Advisory Committee, with 23 members appointed by the Director of the Department, to oversee implementation of the Program.

HB 709 - Keam - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

• Establishes the Packaging Stewardship Program (the Program), administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program.

HB 826 - Hope - Beverage container deposit and redemption program; established, civil and criminal penalties. (H) Subcommittee recommends laying on the table (10-Y 0-N)

• Establishes a beverage container deposit, refund, and redemption program involving distributors, retailers, and consumers. The program would be run by a Producer Responsibility Organization under the Department of Environmental Quality. The bill creates an advisory committee, requires reporting, and imposes civil and criminal penalties for violation.

HB 918 - Lopez - Packaging Stewardship Program and Fund; established. (H) Subcommittee recommends laying on the table (6-Y 4-N)

• Establishes the Packaging Stewardship Program (the Program), administered by the Department of Environmental Quality. Under the Program, a producer that sells products with packaging materials in the Commonwealth pays a fee to the Department based upon the amount of packaging used and whether or not it is easily recyclable. A producer may establish an alternative collection program to offset some or all of the fees. The fees are paid into the Packaging Stewardship Fund, established in the bill, and are used to reimburse participating localities for expenses related to recycling, invest in recycling infrastructure and education, and pay administrative costs related to the Program. The bill authorizes the Department to contract with a third party to administer the Program.

Nonpayment of Wages

HB 889 - Kilgore - Nonpayment of wages; defense of contractor. (H) Reported from Commerce and Energy with substitute (14-Y 8-N), Currently On the House Floor-

• 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.

Overtime

HB 1173 - Ware - Fair Labor Standards Act; overtime, employer liability. On 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.