In 2019, Virginia enacted Va. Code § 40.1-28.01, which prohibits employers from requiring an employee or prospective employee to agree to a confidentiality agreement concealing details related to a claim of sexual assault as a condition of employment. Virginia has recently enacted two new laws that will further limit employers' use of nondisclosure and non-disparagement agreements with employees and prospective employees and will bar the use of social security numbers as employee identification numbers and on employee identification badges or cards. These new laws are set to go into effect on July 1, 2023.
Governor Youngkin signed HB 1895 on March 26, 2023, amending the Nondisclosure Agreement Law. The amendments expand the law to cover not only sexual assault claims but also sexual harassment claims. Moreover, the law now applies to non-disparagement provisions. HB 1895 expands the law to include claims of sexual harassment and prohibits non-disparagement agreements concealing details related to sexual assault or harassment claims. However, the expanded statute only applies to agreements as a condition of employment with current and prospective employees and does not cover post-employment settlement agreements.
Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that affects an individual's employment, interferes with work performance or creates a hostile work environment.
On March 21, 2023, Governor Youngkin signed SB 1040, which prohibits employers from using an employee's social security number on identification cards, badges, or similar items. Employers who knowingly violate this prohibition will be subject to a civil penalty of up to $100 per violation.
Employers should also be mindful of the NLRB's recent action on non-disparagement and confidentiality provisions, as covered in our recent Employment Law Alert. This is in addition to the Virginia-specific developments surrounding these laws.
In light of these newly enacted laws, employers are advised to review and consider revising their non-disclosure, confidentiality, and non-disparagement agreements, as well as their use of employee social security numbers as identification.
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