Labor Law Legislative Update
Virginia’s Day of Rest Statute
A little-known statute on Virginia’s books since 1974 became the focus of widespread attention in July of this year when it was discovered that the General Assembly had inadvertently amended the law.
Since the 1600s Virginia has had Sunday closing laws. In 1974, as society’s needs began to change, the General Assembly met those changing needs by beginning to amend the Sunday closing laws, allowing certain excepted businesses to open on Sundays. The members of the Legislature did not want employees to be forced to work seven days a week without a day of rest, nor did they want employees to have to work on the day they chose to worship. It was out of this balancing of the need for businesses to open seven days a week and the need for employees to have a day of rest that the Day of Rest Law was created.
The Day of Rest Law was codified at §§40.1-28.1 through 40.1-28.5 until the most recent legislative amendments went into effect on July 1, 2004. With the passage of a law to repeal the Sunday Closing Law and the exceptions to that law, the General Assembly inadvertently repealed the exceptions to the Day of Rest Law. Without the exceptions which protected most businesses from the operation of the law, all private employees of private employers were guaranteed a day of rest. In addition, nonmanagerial employees could choose Sunday as a day of rest, or if they believed that Saturday is the Sabbath, they could chose Saturday as their day of rest. Failure to comply with the Day of Rest Law could have subjected employers to criminal prosecution and make them liable for triple damages. Because of the intense media coverage of this issue, many employers feared that they would not be able to staff their businesses over weekends.
Acknowledging the concerns of the business community, the Governor called the General Assembly into special session on July 13, 2004 to correct the unintended effect of the law. In response to that call, the General Assembly enacted §40.1-28.4:1, which replaced the repealed language. In addition, the General Assembly expressed its intent to codify the exceptions as interpreted by the courts. Consequently, the Day of Rest Law was returned to its pre-repealed status.
The only issue of concern to business now is that while many, if not most, businesses are protected from the operation of the law, there are others that are not. Because of the intense media coverage businesses should assume that their employees are now aware of this once obscure law and the requirements it places on employers. Although more than three months have passed since media coverage of this issue began, the Department of Labor and Industry, the agency charged with the enforcement of the Day of Rest Law, has not received a single claim under the statute.
Many parties have expressed serious concerns about the constitutionality of the statute. The United States Supreme Court has already struck down a Vermont law similar to Virginia’s Saturday day of rest provision. Most people familiar with Virginia’s Day of Rest Laws believe that neither the Saturday nor the Sunday provision would survive a constitutional challenge. There may be additional problems under the Constitution of Virginia with treating businesses differently. It is likely that when the General Assembly meets again in January, it will change the law.
Because of these problems with the law, the Department of Labor and Industry is committed to taking a common-sense approach to the enforcement of the statute. The agency has told both employers and employees that the law as it exists now has neither widened nor limited rights any parties had before July 1, 2004. The Department has also communicated that any investigations of claims filed under the statute now would likely not be completed until after the General Assembly meets in January 2005.
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