Hiring New Employees in Virginia: A Legal Guide

Create a clear job description that outlines the position's responsibilities, required qualifications, and compensation. Ensure the job posting complies with Virginia employment laws and does not contain discriminatory language. Virginia follows federal anti-discrimination laws and also prohibits discrimination based on additional protected classes under the Virginia Human Rights Act.

Develop an application form that collects necessary information from candidates while complying with Virginia laws. Avoid questions about age, race, religion, national origin, disability, or other protected characteristics. Virginia law prohibits employers from asking about arrests that did not result in conviction and from requiring applicants to disclose expunged criminal records.

Interview qualified candidates and select the best fit for the position. Document the selection process and reasons for hiring decisions to demonstrate non-discriminatory practices. Keep interview notes and evaluation forms for at least one year in case of any discrimination claims.

Draft an offer letter that includes position title, start date, compensation, benefits, and employment conditions. In Virginia, employment is presumed to be at-will unless specifically stated otherwise. If the position is not at-will, clearly outline the terms of employment duration.

If offering more than at-will employment, prepare a formal employment contract. Include terms of employment, compensation, benefits, termination conditions, and any restrictive covenants. Virginia courts will enforce reasonable non-compete and non-solicitation provisions, but they must be narrowly tailored in geographic scope, duration, and restricted activities.

Create an NDA to protect confidential business information. In Virginia, NDAs are generally enforceable if they protect legitimate business interests and are reasonable in scope and duration. Clearly define what constitutes confidential information and the employee's obligations regarding such information.

If necessary for your business, draft a non-compete agreement. Virginia law requires non-compete agreements to be narrowly tailored and reasonable in geographic scope, duration, and restricted activities. Note that as of July 1, 2020, Virginia prohibits non-compete agreements for 'low-wage workers' (those earning less than the average weekly wage in Virginia).

Create a form to obtain consent for background checks. Virginia follows the federal Fair Credit Reporting Act (FCRA), which requires written authorization before conducting background checks. The form should be clear, conspicuous, and separate from other application materials.

After receiving signed authorization, conduct appropriate background checks. If you decide not to hire based on background check results, you must follow FCRA adverse action procedures, including providing pre-adverse action notice, a copy of the report, and a summary of rights.

If not already registered, register with the Virginia Employment Commission for unemployment insurance. All employers with one or more employees must register within 30 days of paying wages. Registration can be completed online through the Virginia Employment Commission website.

Secure workers' compensation insurance if you have three or more employees (including part-time). In Virginia, employers with three or more employees must carry workers' compensation insurance. This can be obtained through a commercial carrier, the state insurance fund, or self-insurance (if qualified).

Have the new employee complete Section 1 of Form I-9 on their first day of work. As the employer, complete Section 2 within 3 business days of the employee's start date after physically examining acceptable identity and employment authorization documents. Store I-9 forms separately from personnel files and retain for the later of 3 years after hire date or 1 year after termination.

Have the employee complete a W-4 form to determine federal income tax withholding. The form should be completed by the employee's first day of work. Keep the completed form in the employee's payroll records.

Have the employee complete Virginia Form VA-4 for state income tax withholding. This form determines how much state income tax to withhold from the employee's wages. Keep the completed form in the employee's payroll records.

Report the new hire to the Virginia New Hire Reporting Center within 20 days of hire. Virginia employers must report all newly hired and re-hired employees. Reports can be submitted online through the Virginia New Hire Reporting Center website or by mail/fax using the New Hire Reporting Form.

If offering direct deposit, have the employee complete an authorization form. In Virginia, employers cannot require direct deposit unless they offer an alternative payment method. The form should include the employee's banking information and authorization to deposit funds.

Have the employee provide emergency contact information. While not legally required in Virginia, this is a best practice for employee safety. The form should include names, relationships, phone numbers, and addresses of emergency contacts.

Give the new employee a copy of your employee handbook and have them sign an acknowledgment of receipt. The handbook should include company policies, procedures, and expectations. In Virginia, certain policies (such as those regarding at-will employment) are best documented in a handbook with signed acknowledgment.

If offering benefits, provide information and enrollment forms for health insurance, retirement plans, and other benefits. Virginia does not mandate specific employee benefits beyond those required by federal law, but if benefits are offered, they must be administered in compliance with applicable laws like ERISA, ACA, etc.

Ensure all required federal and Virginia-specific workplace posters are displayed in a prominent location. Virginia requires employers to display posters regarding unemployment insurance, workers' compensation, and safety and health protection on the job, among others. Federal posters include FLSA, FMLA, OSHA, and Equal Employment Opportunity notices.

Establish a payroll system that complies with Virginia wage payment laws. Virginia requires employers to pay employees at least once every two weeks or twice per month. Final wages must be paid by the next regular payday. Maintain accurate records of hours worked, wages paid, and deductions.

Provide orientation to familiarize the new employee with company policies, procedures, and job expectations. Cover workplace safety, anti-discrimination and harassment policies, and other important information. Document the orientation to demonstrate compliance with training requirements.