Virginia HB 984: Misclassification of workers; cause of action.

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2020 SESSION

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CHAPTER 203 

An Act to amend the Code of Virginia by adding in Article 1 of 
Chapter 3 of Title 40.1 a section numbered 40.1-28.7:7, relating to the misclassification 
of workers; cause of action. 

[H 984] 

Approved March 10, 2020 

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Article 
1 of Chapter 3 of Title 40.1 a section numbered 40.1-28.7:7 as follows:

� 40.1-28.7:7. Misclassification of workers.

A. An individual who has not been properly classified as an 
employee may bring a civil action for damages against his employer for failing 
to properly classify the employee if the employer had knowledge of the individual's 
misclassification. An individual's representative may bring the action on 
behalf of the individual. If the court finds that the employer has not properly 
classified the individual as an employee, the court may award the individual 
damages in the amount of any wages, salary, employment benefits, including 
expenses incurred by the employee that would otherwise have been covered by 
insurance, or other compensation lost to the individual, a reasonable attorney 
fee, and the costs incurred by the individual in bringing the action.

B. In a proceeding under subsection A, an individual who 
performs services for a person for remuneration shall be presumed to be an 
employee of the person that paid such remuneration, and the person that paid 
such remuneration shall be presumed to be the employer of the individual who 
was paid for performing the services, unless it is shown that the individual is 
an independent contractor as determined under the Internal Revenue Service 
guidelines. 

C. As used in this section, "Internal Revenue Service 
guidelines" means the most recent version of the guidelines published by 
the Internal Revenue Service for evaluating independent contractor status, 
including its interpretation of common law doctrine on independent contractors, 
and any regulations that the Internal Revenue Service may promulgate regarding 
determining whether an employee is an independent contractor, including 26 
C.F.R. � 31.3121(d)-1.