Richmond Judge Enjoins Changes to Virginia's Day of Rest Laws - Chapter 508 of the 2004 Acts of Assembly

On July 2, 2004, a Richmond Circuit Court Judge has relieved the anxiety of many Virginia employers by prohibiting enforcement of any changes to the State's day of rest laws for at least 90 days. Several employers sued the State to delay enforcement until the constitutionality of the day of rest laws and their effect on employers and the work force could be more fully understood.

Except in an emergency, every worker in the State is entitled to 24 consecutive hours off in each calendar week. Sect. 40.1-28.1 For many years, non-management employees have been given the authority to REQUEST Saturday or Sunday off as their day of rest. Sect. 40.1-28.2 (Sundays) and 40.1-28.3 (Saturdays). For Sundays, a simple written notice is sufficient. For Saturdays, notice and a conscientious intention to refrain from all secular activities, including labor, on that day is required--a greater showing than for Sundays.

Under the law prior to July 1, 2004, employers who received such a request could decline to grant the request if their business was described in the lengthy list of exemptions referenced in Sect. 40.1-28.5 and actually set forth at Sect. 18.2-341(A). Over a period of years the growing number of exemptions amounted to a substantial majority of all Virginia employment. The July 1 change removes from the law both the reference to the list of exemptions, and also the list itself. Accordingly, the ability to refuse a request for time off in reliance on the exemption is gone, at least for now.

The media has highlighted this change, and many employers have been seeking advice. The law requires written notice but does not specify a timeframe after which the notice becomes effective. Some employers have stated that this implies that a reasonable, advance notice can be required in order to make schedules, but the state agency responsible for enforcing the law, the Virginia Department of Labor and Industry (DLI) does not necessarily agree. However, to date, DLI had not yet taken an official position on enforcing the changes to the law.

Of note, the Governor and the bill’s patron have indicated publicly that the legislative intent was to open up commerce on Sundays by repealing antiquated blue laws. In no way was the change intended to restrict employers from scheduling their staff on Sundays or Saturdays. The Governor has said he will ask the Attorney General to determine whether the effect of the law can be avoided. If so, the DLI would presumably be instructed by the Governor not to enforce the law. Today's ruling had a similar effect.

Should a complaint be made that an employer has violated this law, an investigation may be conducted by DLI. There is a possibility of a fine up to $500 for each offense (See Sect. 40.1-28.4), and a requirement to pay affected employees triple-time for hours actually worked on the requested day of rest. Employers who routinely employ persons on Saturdays and Sundays should stay tuned for more information on how this situation develops.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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