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Pro-Worker Laws Targeted for Rollback in Virginia Regime Change

Jan. 12, 2022, 10:30 AM

Workplace law in Virginia is poised to undergo a conservative shift starting this week as Republicans reclaim control of the state House and governor’s office, potentially affecting issues from minimum wage to on-the-job vaccine mandates.

The state’s labor and employment policies tilted in employees’ favor over the past two years, under Gov. Ralph Northam (D) and Democratic leadership in both chambers of the state legislature. Lawmakers raised the minimum wage, expanded anti-bias laws to cover sexual orientation and gender identity, opened the door to collective bargaining rights for local government employees, and strengthened the state’s enforcement powers against wage underpayment.

But Republicans swept the state’s elections in November, with former private equity executive Glenn Youngkin claiming the governor’s office and the GOP winning a majority in the state House, along with the positions of lieutenant governor and attorney general. Democrats retain a narrow majority in the state Senate, where seats aren’t up for re-election until 2023.

Youngkin pitched himself to voters as an employer-friendly candidate who would eliminate “job-killing regulations,” and he’s voiced opposition to government-imposed vaccine mandates. It isn’t clear how far Republicans can or will go to undo the workplace policies Democrats recently enacted, but business groups such as the National Federation of Independent Business and the Virginia Chamber of Commerce are looking to seize the opportunity.

“Youngkin is obviously very pro-business,” said Tim Goodrich, executive director of state government relations at NFIB. “We’re hoping to get some positive changes to some of these labor laws that passed that basically went too far.”

Targeted Policies

Among those policies, the group is pushing to freeze the state’s minimum wage at $11 an hour—the rate that took effect Jan. 1. The law Northam signed in 2020 calls for gradual increases until the wage floor reaches $12 next January, followed by an economic impact study and a vote by state lawmakers on whether to continue the annual increases to reach $15 per hour by 2026.

The NFIB also is calling for revising or repealing the state’s Covid-19 workplace safety regulation, an overtime law that Goodrich said doesn’t include the same exemptions as federal law, and a mandate for project labor agreements on state and local construction projects.

A representative for Youngkin declined to comment, and incoming House Speaker Todd Gilbert (R) didn’t respond to requests for comment.

Youngkin recently announced he plans for Virginia to join lawsuits challenging President Joe Biden‘s Covid-19 vaccine mandates for health-care workers and large employers. The governor-elect also announced his labor secretary appointment as George “Bryan” Slater, a former U.S. Labor Department official under the Trump administration who was White House liaison to the Labor Department under President George W. Bush.

‘Historic Progress’ for Workers

As business groups push for rollback of Democrats’ workplace policies, worker advocates are on guard to preserve them and view the Senate’s narrow Democratic majority as an important backstop.

In the past two years, “we saw Virginia pass for the first time meaningful protections for workers,” said David Broder, president of Service Employees International Union of Virginia 512. He called the legislation Democrats enacted “historic progress” for workers.

Any potential effort to repeal those policies would face not only the hurdle of passing the Senate but also popular support among voters, especially for the statewide minimum wage increase, he added.

“We feel like there’s no reason to redebate the minimum wage in 2022,” said Ashley Kenneth, president and CEO of The Commonwealth Institute for Fiscal Analysis. “Our scheduled minimum wage increases—$11 this year, $12 next year—are in line with other states.”

Coping With Covid

Repealing the state’s Covid-19 workplace safety standard—should Youngkin’s administration choose to pursue it—also wouldn’t be a quick or easy task. The standard was implemented after a public comment process and vote by the state labor department’s Safety and Health Codes Board, Broder said.

Virginia was the first state to adopt a Covid-19 workplace safety standard in July 2020 and was seen as a model for other states. It revised its standard, effective in September 2021, giving employers the option to follow Centers for Disease Control and Prevention recommendations as one means of compliance.

Goodrich, of the NFIB, said the standard requires precautions that don’t necessarily match up with the latest or best science on containing the virus, such as installing plastic divider shields in workplaces.

Republicans pre-filed a handful of bills targeting labor and employment policies in advance of the session’s Wednesday start date—including a couple that focus on workplace vaccine mandates.

Among them, SB 189 would bar employers from mandating Covid-19 vaccines and subject employers to civil penalties for firing or discriminating against an unvaccinated worker—up to $10,000 per violation for small employers or $50,000 for large companies.

Following a Trend

Proposals to restrict Covid-19 vaccine mandates surged among Republican-led state legislatures and governors across the country last year, although most states stopped short of outright banning private employers from requiring the shots for their workers, amid opposition from business and health-care industry groups.

While Youngkin opposes government-imposed vaccine mandates, he hasn’t said whether he would support taking that option away from private employers.

Any effort to ban workplace vaccine mandates would face opposition from many of the Fortune 500 companies that have offices and headquarters in Virginia, predicted Jared Leopold, a Democratic consultant in Virginia.

“It would be a massive political risk for a so-called business-friendly governor to pick a fight with Virginia businesses that have chosen to implement vaccine mandates,” he said.

Another Republican proposal, SB 173, would implement NFIB’s request to freeze the state’s minimum wage at $11 per hour and cancel further annual increases.

Bills also are pending to set limits on domestic worker protections that were extended through Democratic-sponsored legislation in 2021, and to prevent cities and counties from using government contracts to require employers to offer wages or employee benefits beyond what’s required by state or federal law. Local governments in Virginia already lack the legal authority to impose their own minimum wage rules on private employers.

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com