2025 Session of the Virginia General Assembly Roundup

Expansion of Restrictions on Non-Compete Agreements for “Low-Wage” Employees

Virginia already prohibits employers from entering into, enforcing, or threatening to enforce non-compete agreements against “low-wage employees,” who were previously defined as individuals whose earnings were less than the Commonwealth’s average weekly wage. As of 2025, that amount was $1,463.10 per week, or an annual salary of $76,081. Effective July 1, 2025, the definition of “low-wage employee” includes employees who, regardless of their average weekly earnings, are entitled to overtime compensation under federal law for any hours worked in excess of 40 hours in any one workweek. The law generally precludes non-compete agreements for employees deemed “non-exempt” from the Fair Labor Standards Act. Exceptions remain, however, for employees whose earnings are derived, in whole or predominant part, from commissions, incentives, or bonuses. These changes in the law do not apply to agreements entered into or renewed prior to July 1, 2025. 

Employers should remain mindful of other requirements and penalties for violations that have not changed:

• Employees may bring a civil action against an employer that attempts to enforce a legally prohibited restrictive covenant, and if they prevail, the employee may be entitled to liquidated damages, as well as lost wages, benefits and attorney’s fees. In addition, employers may be subject to a civil penalty of up to $10,000 per violation.
• The new law does not prevent employers from utilizing nondisclosure agreements that are “intended to prohibit the taking, misappropriating, threatening to misappropriate, or sharing of certain information to which an employee has access, including trade secrets . . . and proprietary or confidential information.”
• The law also has a general notice that outlines the current non-compete ban for low-wage employees, or an approved summary of Virginia Code § 40.1-28.7:8 provided by the Virginia Department of Labor and Industry. This notice must be posted alongside other mandatory federal and state employment law postings. 

Consequences for Failure to Timely Respond to Unemployment Claims

Employers will be deemed to have established a pattern of failing to respond timely or adequately to written requests for information relating to unemployment claims if the Virginia Employment Commission determines that the employer has failed to respond timely or adequately on three or more occasions within the applicable review period. A response is considered “timely” if a response is made within 10 calendar days after the delivery or mailing of the Commission’s request. Moreover, a response is considered “adequate” if it provides enough facts to enable the Commission to make a correct decision. 

• First failure – the Commission will send a warning letter explaining that the employer failed to meet the requirement.
• Second failure – the Commission will assess a $100 civil penalty against the employer.
• Third failure – Employer loses appeal rights to the Commission’s decision on the claim and will not be credited for any overpayment resulting from that decision. 

The Commission may consider good cause for a late or incomplete response if the employer can demonstrate that the Commission (i) did not deliver the request to the physical or electronic address specified in writing by the employer for unemployment insurance claim matters or (ii) did not deliver the request to the employer’s designated attorney or authorized representative for unemployment insurance claim matters. 

Increase in Unemployment Compensation Benefits

Beginning January 1, 2026, for claims effective on or after January 1, 2026, unemployment benefits will increase by $52 per week for eligible individuals. In addition, the law directs the Commission on Unemployment Compensation, jointly with the Virginia Employment Commission, to study making annual adjustments to individual weekly benefit amounts based on the average weekly wage. 

Employer Liability for Injuries to Vulnerable Victims

This new law mandates that a finder of fact in an action for personal injury or wrongful death brought by a “vulnerable victim” against an employer’s employee must determine whether an employer should be held vicariously liable for the actions of its employee. 

A “vulnerable victim” is defined as any person who is at a substantial disadvantage compared to the defendant employee due to various circumstances, which can include physical or mental conditions. The law also states that this definition includes: 

• Patients of healthcare providers, as defined by Virginia Code § 8.01-581.1;
• Persons under disability, pursuant to Virginia Code § 8.01-2;
• Residents of assisted living facilities;
• Passengers of common carriers, as defined by Virginia Code § 46.2-2000, excluding public transit agencies funded by the Commonwealth Mass Transit Fund, as defined by Virginia Code § 33.2-1526;
• Passengers of non-emergency medical transportation carriers, as defined by Virginia Code § 46.2-2000;
• Business invitees of esthetic spas, as defined in Virginia Code § 54.1-700, or a business offering massage therapy, as defined by Virginia Code § 54.1-3000; or
• A vulnerable adult, as defined by Virginia Code § 18.2-369. 

The factfinder “shall determine whether an employer shall be vicariously liable for the tortious conduct of such employer’s employee.” The vulnerable victim (or the representative of the deceased) bears the burden of proving all four of the following elements:

• The employee was reasonably likely to come into contact with the vulnerable victim and the employee’s tortious conduct proximately caused the victim’s personal injury or wrongful death;
• The employer failed to exercise reasonable care to (i) prevent the employee’s intentional harm toward the vulnerable victim or (ii) control the employee, which resulted in an unreasonable risk that the vulnerable victim would suffer personal injury or wrongful death;
• The employer knew or had reason to know of the liability to control the employee; and
• The employer knew or had reason to know of the necessity and opportunity to exercise such control over the employee. 

The provisions of this new law apply only to causes of action that accrued on or after July 1, 2025. 

Workplace Safety Plan Mandates for Hospitals

Hospitals in Virginia are required to establish a workplace violence incident reporting system, including reporting, record retention, and antidiscrimination and antiretaliation requirements. Throughout the year, hospitals must “document, track, and analyze any incident of workplace violence reported” and the analyses must be used “to make improvements in preventing workplace violence.” These improvements can be achieved through continuing education in targeted areas, including de-escalation training, risk identification, and violence prevention planning.

In addition, hospitals must clearly communicate the reporting system to all employees, including any new employees at orientation, and include guidelines on “when and how to report incidents of workplace violence to the employer, security agencies, and appropriate law-enforcement authorities.” 

Records of reported incidents must be maintained for a minimum of two years and must, at a minimum, include:

• The date and time of the incident;
• A description of the incident, including the job titles of affected employee(s);
• Whether the perpetrator was a patient, visitor, employee, or other person;
• A description of where the incident occurred;
• Information relating to the incident, including whether it involved a physical attack with or without a weapon or object, a threat of physical force or use of a weapon or other object with the intent to cause bodily harm, sexual assault or threat of sexual assault, or “anything else” not specifically enumerated;
• The response to and any consequences of the incident, including whether security or law enforcement was contacted and, if so, their response and whether the incident resulted in any change to hospital policy; and
• Information about the individual who completed the report, including name, job title, and date of completion. 

This data must be reported to the chief medical officer and the chief nursing officer of the hospital on a quarterly basis, and to the Department of Health on an annual basis. The law directs the State Board of Health to promulgate regulations as to the annual reporting of data to the Department of Health by July 1, 2026. 

Child Labor Protections for Content Creators

In a sign of our evolving times, Virginia enacted specific provision to protect the wages of children who are involved in content creation. The statute provides that a child under the age of 16 is considered to be engaged in the work of content creation when during the previous 12-month period:

• At least 30 percent of the content creator’s compensated video content produced within a 30-day period includes the likeness, name, or photograph of the child; and
• The number of views received per video segment on any online platform met the online platform’s threshold for the generation of compensation or the content creator received compensation for video content equal to or greater than $0.10 per view. 

The law also requires content creators whose content regularly features a child (or their likeness) under the age of 16 engaged in the work of content creation to maintain the following records:

• The name and documentary proof of the age of the child engaged in the work of content creation;
• The number of videos that generated compensation;
• The number of minutes of the video content that the content creator received compensation for during the reporting period;
• The number of minutes each child was featured in video content during the reporting period;
• The total compensation generated from video content featuring a child during the reporting period; and
• The amount deposited into the trust account for the child during the reporting period.

In addition, a percentage of gross earnings on any content involving a qualified child must also be set aside into a trust account accessible to that child once they reach 18 years of age or have been declared emancipated.

If a content creator fails to maintain the required records or set aside gross earnings, the child, or the parent or guardian on behalf of the child, may bring a civil action to enforce the child’s rights. With respect to causes of action brought to enforce the provision regarding the trust account, a child who prevails in a civil action is entitled to compensatory damages, punitive damages, and costs, including reasonable attorney’s fees. The statute of limitations to commence a civil action is no more than two years after the child has reached 18 years of age. 

Employment Prohibition Exceptions for Children Under 16 Working in a Licensed Barbershop or Cosmetology Salon

In 2023, the General Assembly amended Virginia Code § 40.1-100 to permit children aged 16 years or older in registered apprenticeships to work in barbershops or cosmetology salons licensed by the Virginia Department of Professional and Occupational Regulation’s Board for Barbers and Cosmetology. On March 21, 2025, House Bill 1667/Senate Bill 1228 further amended Virginia Code § 40.1-100 to allow children aged 16 years or older employed under a valid work-training program or holding a cosmetology or barber license from the Board for Barbers and Cosmetology, to work in barbershops or cosmetology salons licensed by the Board for Barbers and Cosmetology.

What This Means for Employers

Employers should review their policies and stay up to date on the latest developments to ensure their policies comply with these updates.