2022 SESSION
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22104096D
A BILL to amend the Code of Virginia by adding in Article 1 ofChapter 3 of Title 40.1 a section numbered 40.1-28.7:10, relating to prohibitionon employer seeking wage or salary history of prospective employees; cause ofaction; civil penalty.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Article1 of Chapter 3 of Title 40.1 a section numbered 40.1-28.7:10 as follows:
§ 40.1-28.7:10. Seeking wage or salary history ofprospective employees prohibited; civil penalty.
A. As used in this section:
"Wage or salary history" means the wage or salarypaid to the prospective employee by the prospective employee's current employeror previous employer.
"Wage or salary range" means the wage or salaryrange that the employer anticipates relying on in setting wages for theposition and may include reference to any applicable pay scale, any previouslydetermined range of wages or salaries for the position, the actual range ofwages or salaries for those currently holding comparable positions, or the budgetedamount for the position, as applicable.
B. No employer shall:
1. Seek the wage or salary history of a prospectiveemployee;
2. Rely on the wage or salary history of a prospectiveemployee in considering the prospective employee for employment;
3. Except as provided in subsection D, rely on the wage orsalary history of a prospective employee in determining the wages or salary theprospective employee is to be paid upon hire;
4. Refuse to interview, hire, employ, or promote aprospective employee or otherwise retaliate against a prospective employee fornot providing wage or salary history;
5. Fail or refuse to provide a prospective employee thewage or salary range for the position for which the prospective employee isapplying prior to discussing compensation and at any time upon the prospectiveemployee's request.
C. The provisions of subsection B shall not be construed toprevent a prospective employee from voluntarily disclosing wage or salaryhistory, including for the purpose of negotiating wages or salary after aninitial offer of employment with an offer of compensation.
D. If wage or salary history is voluntarily provided by aprospective employee without prompting from the employer then (i) the employer[ shall may ] rely on wage or salary history to supporta wage or salary higher than the employer's initial offer of compensation onlyto the extent that the higher wage or salary does not create an unlawful paydifferential in violation of § 40.1-28.6 or federal law and (ii) the employermay seek to confirm the wage or salary history of the prospective employee tosupport a wage or salary higher than the wage or salary offered by theemployer.
E. An employer that violates the provisions of this sectionshall be liable to the prospective employee or employee who was the subject ofthe violation for statutory damages between $1,000 and $10,000 or actualdamages, whichever is greater, reasonable attorney fees and costs, and anyother legal and equitable relief as may be appropriate. An aggrieved prospectiveemployee or employee may bring an action, individually, jointly, with otheraggrieved prospective employees or employees, or on behalf of similarlysituated prospective employees or employees as a collective action against theemployer in a court of competent jurisdiction within two years of when theprohibited action occurred. For the purpose of this section, a prohibitedaction occurs when (i) a prohibited wage or salary decision or practice isadopted; (ii) an individual is subject to a prohibited wage or salary decisionor practice; or (iii) an individual is affected by the application of aprohibited wage or salary decision or practice, including each time wages orsalaries paid result, in whole or in part, from a prohibited wage or salarydecision or practice.
F. Any employer that violates the provisions of thissection is subject to a civil penalty not to exceed (i) $1,000 for a firstviolation, (ii) $2,000 for a second violation, and (iii) $4,000 for a third orsubsequent violation. The Commissioner shall notify any employer that healleges has violated any provision of this section by certified mail. Suchnotice shall contain a description of the alleged violation. Within 15 days ofreceipt of notice of the alleged violation, the employer may request aninformal conference regarding such violation with the Commissioner. Indetermining the amount of any penalty to be imposed, the Commissioner shallconsider the size of the business of the employer charged and the gravity ofthe violation. The decision of the Commissioner shall be final. Civil penaltiesunder this section shall be assessed by the Commissioner and paid to theLiterary Fund. The Commissioner shall prescribe procedures for the payment ofproposed penalties that are not contested by employers.
[ 2. That theprovisions of this act shall become effective on July 1, 2023. ]
