Virginia has joined several other jurisdictions, including D.C. and Maryland, in enacting wage transparency laws. In addition to imposing additional prohibitions on employers during the application process, this new legislation means that your organization’s non-compliance may be published for public awareness.
Job Posting Requirements
Virginia’s newly enacted law requires employers to include the pay or pay range in every public and internal posting for any job, promotion, transfer, or other opportunity. This pay or pay range must be set in good faith. The law defines the pay range as the minimum and maximum wage or salary for the position, set in good faith by reference to any applicable pay scale, any previously determined wage or salary range for the position, the actual range of wages or salaries for persons currently holding equivalent positions, or the budgeted amount available for the position, as applicable.
The law’s enforcement provisions cast a wide net as employers are not just liable to current employees. Unlike D.C. and Maryland’s wage transparency laws that carry no private right of action, employers in Virginia may be liable to both prospective and current employees who bring an action within one year of when their rights were violated. Employers are afforded the opportunity to correct a violation of the job posting requirements. If the employer receives written notice relating to a particular posting from any individual and corrects the posting within 15 business days of receiving the notice, no action can be brought by a current or prospective employee. The Attorney General may also bring a civil action to enforce the provisions of the law, which could result in costly penalties.
Because of the outward-facing nature of this law, employers should act promptly to ensure their job postings are compliant. And this trend is not limited to local job postings. The state of Washington’s Supreme Court recently held that individuals applying to jobs with no posted wage information can bring a claim, even if the applicant was not applying in good faith and was just trolling to catch a failure to comply. While it is unclear how Virginia courts will approach this issue since “prospective employees” are not defined in the statute, to avoid this headache and legal exposure, employers should take these obligations seriously.
Apart from the absence of a private right of action, Virginia’s law is generally in line with D.C. and Maryland’s wage transparency laws. Employers in Maryland, however, are reminded that their job postings must also include other compensation (overtime, differentials, tips, commissions, bonuses, etc.) and a general description of benefits (insurance, leave, retirement, etc.). In D.C., employers must disclose to prospective employees the existence of healthcare benefits before the first interview, but this is not required to be in a job posting.
Wage History Requirements
Under Virginia’s new law, employers are also prohibited from seeking the wage or salary history of a prospective employee or relying on the wage or salary history of a prospective employee in considering the prospective employee for employment or in determining the wages or salary the prospective employee is to be paid upon hire. Employers may not refuse to interview, hire, employ, promote or otherwise retaliate against a prospective or current employee for not providing wage or salary history or for requesting a wage or salary range for a position.
There are some exceptions. Virginia’s law provides that a prospective employee may voluntarily provide their wage or salary history. In this case, the employer may rely on the wage or salary history to support a wage or salary higher than the employer’s initial offer of compensation. Employers may also use this voluntarily provided information to confirm the wage or salary history of the prospective employee to support a wage or salary higher than that offered by the employer. In these scenarios, employers may rely on or use the information to support a higher wage if doing so would not create an unlawful pay differential based on a protected characteristic.
This law generally aligns with D.C. and Maryland law, with a few slight differences. D.C. does not have an exception for voluntarily provided wage information. D.C. law also explicitly prohibits employers from seeking the wage history from a prospective employee’s current or previous employer. Like Virginia, Maryland employers may rely on the wage history voluntarily provided by the applicant to support or confirm a wage higher than initially offered by the employer. However, in Maryland, this exception only applies after an employer makes an initial offer of employment that includes an offer of compensation.
This law provides the same penalties and enforcement mechanisms as outlined above, but with no opportunity to fix any noncompliance. Considering this law and its private right of action, employers should ensure the interviewers within their organizations are properly trained to avoid requesting or relying on this wage or salary history.
This law adds to the growing number of obligations placed on Virginia employers in recent months. If you have questions about your organization’s compliance with this law, please do not hesitate to reach out to our employment and labor team.
About the Authors
Merry Campbell
Merry Campbell is a shareholder and Co-Chair of Shulman Rogers’ Employment and Labor Law Group. She advises employers on workplace investigations, wage and hour compliance, restrictive covenants, and employment agreements and handbooks, and represents management in labor matters and litigation. She began her career at an international law firm before returning home to Montgomery County, Maryland. She earned her J.D. from Harvard Law School.
Learn more about Merry: https://www.shulmanrogers.com/attorneys/meredith-merry-campbell/
Joy Einstein
Joy Einstein is a shareholder and Co-Chair of Shulman Rogers’ Employment and Labor Law Group. She advises employers on workplace harassment and misconduct, wage and hour compliance, employee handbooks, and union matters, and represents clients before federal and state courts, the EEOC, and the NLRB. Before joining the firm, she clerked for Judge James E. Seibert in the U.S. District Court for the Northern District of West Virginia. She earned her J.D. from William & Mary Law School.
Learn more about Joy: https://www.shulmanrogers.com/attorneys/joy-c-einstein/
Brynn Reese
Brynn Reese is an associate in Shulman Rogers’ Employment and Labor Law Group. She advises employers on workplace disputes, wage and hour issues, restrictive covenants, and policy development, including employee handbooks. Before joining the firm, she clerked with the U.S. Merit Systems Protection Board and interned in the Arlington Circuit Court. She earned her J.D. from Catholic University.
Learn more about Brynn: https://www.shulmanrogers.com/attorneys/brynn-reese/
