During its 2018 legislative session, the Virginia General Assembly passed two bills which increase employment protections for employees and job applicants who are members of a reserve military force or civilian auxiliary unit. Although some bills are still waiting for Governor Ralph Northam’s signature, he has already signed these two into law.
Virginia Unpaid Leave and Anti-Discrimination Measures for National Guard Members
Under existing law, employees and job applicants are afforded specific employment protections if they serve in the Virginia National Guard or Virginia Defense Force, or if they are a Virginia resident who is a member of the National Guard of another state. The new law, HB 146, extends those employment protections to a person who is a member of the National Guard of another state, regardless of their place of residence.
Effective July 1, 2018, Virginia employers are prohibited from discriminating against a person who is a member of the National Guard of another state, regardless of that person’s state of residence. A National Guard member cannot be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of their membership, performance of service, or obligation for service.
A National Guard member who is employed within Virginia is entitled to take an unpaid leave of absence from their nongovernmental employment, if called to state active duty or military duty. The employee cannot be forced to use vacation or other accrued leave provided by the employer, but can choose to use or exhaust such leave at their own discretion.
If an employee does take a leave of absence for active duty, they are entitled to reemployment in the position they previously held upon their honorable release from duty so long as the cumulative length of their leaves of absence is less than 5 years. If the position has been cut or no longer exists, the employee is entitled to reinstatement in a vacant position which is equal or comparable in terms of seniority, status, and pay. The employee is required to apply to the employer in writing within 14 days of their release from duty or hospitalization following a leave of absence of less than 18 days, or within 90 days following a leave of absence of 180 days or longer.
An employer who fails to comply with the provision of the law may be compelled by court order to comply and required to pay the amount of the employee’s loss of wages or benefits, reasonable attorney’s fees, and court costs (VA Code § 44-93.5).
Unpaid Leave for Virginia Civil Air Patrol Volunteers
Another bill passed during the same session, HB 1527, creates new leave entitlements for employees who are volunteer members of the Civil Air Patrol. This bill also goes into effect on July 1, 2018.
Employees are entitled to up to 10 workdays per federal fiscal year for the purposes of training for emergency missions with the Civil Air Patrol, and up to 30 workdays per federal fiscal year for the purposes of responding to an emergency mission. The leave of absence does not have to be paid, but the employee must be allowed to take the leave without loss of seniority, accrued leave, benefits, or efficiency rating. Employers may provide allocated paid leave for this purpose, but the employee cannot be forced to use vacation or other accrued leave provided by the employer.
In the private sector, an employee who believes that their rights under this law have been violated are entitled to bring a civil action, and may be entitled to recover lost wages, reasonable attorney’s fees, and court costs. Public employees are entitled to bring an action pursuant to the State Grievance Procedure.
Virginia does not currently provide or require a posting describing the state laws prohibiting discrimination in employment or entitlement to unpaid leave, so employers don’t have to worry about labor law poster updates. However, employers operating in Virginia should examine their existing leave policies and and review existing materials such as employee handbooks to ensure that they are compliant by July 1.
CPC provides custom print services for companies across the U.S., as well as standard labor law compliance materials. Please contact us if you’d like to discuss creating a poster, employee handbook, or other materials to reflect internal company policies or state employment laws that don’t have a pre-made poster. And don’t forget to follow us on social media, or subscribe to our blog, to keep up with labor law news for Virginia and other states.