{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/40.1-28.7_7.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/40.1-28.7_7.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/40.1-28.7_7.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/40.1-28.7_7.html"}],"law_id":81771,"edition_id":1,"section_id":81771,"structure_id":13640,"section_number":"40.1-28.7:7","catch_line":"Misclassification of workers","history":"2020, cc. 203, 381; 2021, Sp. Sess. I, c. 448.","full_text":"A\n\nAn 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\n\nIn 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\n\nAs 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.D\n\nIn a proceeding under subsection A, a hiring party providing an individual with personal protective equipment in response to a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared pursuant to § 44-146.17 shall not be considered in any determination regarding whether such individual is an employee or independent contractor. For the purposes of this subsection, the terms “communicable disease of public health threat,” “disaster,” and “state of emergency” have the same meaning as provided in § 44-146.16.","order_by":null,"text":{"0":{"id":292985,"text":"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.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":292986,"text":"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.","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":292987,"text":"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.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"D"},"3":{"id":292988,"text":"In a proceeding under subsection A, a hiring party providing an individual with personal protective equipment in response to a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared pursuant to § 44-146.17 shall not be considered in any determination regarding whether such individual is an employee or independent contractor. For the purposes of this subsection, the terms “communicable disease of public health threat,” “disaster,” and “state of emergency” have the same meaning as provided in § 44-146.16.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C"}},"ancestry":[{"id":13640,"edition_id":1,"name":"General Provisions","identifier":"1","label":"article","depth":3,"order_by":1,"parent_id":12777,"metadata":{},"date_created":"2026-06-26 03:45:27","date_modified":"2026-06-26 03:45:27","permalink":{"id":219807,"object_type":"structure","relational_id":13640,"identifier":"1","token":"40.1\/3\/1","url":"\/40.1\/3\/1\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12777,"edition_id":1,"name":"Protection of Employees","identifier":"3","label":"chapter","depth":2,"order_by":1,"parent_id":12776,"metadata":{},"date_created":"2026-06-26 03:43:52","date_modified":"2026-06-26 03:43:52","permalink":{"id":219805,"object_type":"structure","relational_id":12777,"identifier":"3","token":"40.1\/3","url":"\/40.1\/3\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12776,"edition_id":1,"name":"Labor and Employment","identifier":"40.1","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:52","date_modified":"2026-06-26 03:43:52","permalink":{"id":219723,"object_type":"structure","relational_id":12776,"identifier":"40.1","token":"40.1","url":"\/40.1\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":77584,"structure_id":13640,"section_number":"40.1-22","catch_line":"Safety and Health Codes Commission continued as Safety and Health Codes Board","url":"\/40.1-22\/","token":"40.1\/3\/1\/40.1-22","metadata":false},{"id":67414,"structure_id":13640,"section_number":"40.1-22.1","catch_line":"Governor authorized to enter certain agreements","url":"\/40.1-22.1\/","token":"40.1\/3\/1\/40.1-22.1","metadata":false},{"id":64288,"structure_id":13640,"section_number":"40.1-23","catch_line":"Repealed","url":"\/40.1-23\/","token":"40.1\/3\/1\/40.1-23","metadata":false},{"id":66063,"structure_id":13640,"section_number":"40.1-26","catch_line":"Repealed","url":"\/40.1-26\/","token":"40.1\/3\/1\/40.1-26","metadata":false},{"id":56917,"structure_id":13640,"section_number":"40.1-27","catch_line":"Preventing employment by others of former employee","url":"\/40.1-27\/","token":"40.1\/3\/1\/40.1-27","metadata":false},{"id":54740,"structure_id":13640,"section_number":"40.1-27.1","catch_line":"Discharge of employee for absence due to work-related injury prohibited","url":"\/40.1-27.1\/","token":"40.1\/3\/1\/40.1-27.1","metadata":false},{"id":74658,"structure_id":13640,"section_number":"40.1-27.2","catch_line":"Preference for veterans and spouses","url":"\/40.1-27.2\/","token":"40.1\/3\/1\/40.1-27.2","metadata":false},{"id":82455,"structure_id":13640,"section_number":"40.1-27.3","catch_line":"Retaliatory action against employee prohibited","url":"\/40.1-27.3\/","token":"40.1\/3\/1\/40.1-27.3","metadata":false},{"id":78662,"structure_id":13640,"section_number":"40.1-27.4","catch_line":"Discipline for employee's medicinal use of cannabis oil prohibited","url":"\/40.1-27.4\/","token":"40.1\/3\/1\/40.1-27.4","metadata":false},{"id":70077,"structure_id":13640,"section_number":"40.1-28","catch_line":"Unlawful to require payment for medical examination as condition of employment","url":"\/40.1-28\/","token":"40.1\/3\/1\/40.1-28","metadata":false},{"id":68891,"structure_id":13640,"section_number":"40.1-28.01","catch_line":"Nondisclosure or confidentiality agreement; 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This law was first created in 2020. The record of its establishment is cataloged in chapters 203<\/a> and 381<\/a> of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year.<\/p>","references":false,"refers_to":[{"id":65984,"section_number":"44-146.16","catch_line":"Definitions","order_by":null,"url":"\/44-146.16\/"},{"id":78828,"section_number":"44-146.17","catch_line":"Powers and duties of Governor","order_by":null,"url":"\/44-146.17\/"}],"permalink":{"id":219901,"object_type":"law","relational_id":81771,"identifier":"40.1-28.7:7","token":"40.1\/3\/1\/40.1-28.7_7","url":"\/40.1-28.7_7\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/40.1-28.7_7\/","token":"40.1\/3\/1\/40.1-28.7_7","dublin_core":{"Title":"Misclassification of workers","Type":"Text","Format":"text\/html","Identifier":"\u00a7 40.1-28.7:7","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> An individual who has not been properly classified as an employee<\/span> may bring a civil action<\/span> for damages<\/span> against his employer<\/span> for failing to properly classify the employee<\/span> if the employer<\/span> had knowledge of the individual’s misclassification. An individual’s representative may bring the action on behalf of the individual. If the court<\/span> finds that the employer<\/span> has not properly classified the individual as an employee<\/span>, the court<\/span> may award the individual damages<\/span> in the amount of any wages, salary, employment benefits, including expenses incurred by the employee<\/span> 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. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> In a proceeding under subsection A, an individual who performs services for a person for remuneration shall be presumed to be an employee<\/span> of the person that paid such remuneration, and the person that paid such remuneration shall be presumed to be the employer<\/span> 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<\/span>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> As used in this section, “Internal Revenue Service guidelines<\/span>” 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<\/span> doctrine on independent contractors, and any regulations that the Internal Revenue Service may promulgate regarding determining whether an employee<\/span> is an independent contractor, including 26 C.F.R. § 31.3121(d)-1. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> In a proceeding under subsection A, a hiring party<\/span> providing an individual with personal protective equipment in response to a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared pursuant to § 44-146.17<\/a> shall not be considered in any determination regarding whether such individual is an employee<\/span> or independent contractor. For the purposes of this subsection, the terms “communicable disease of public health threat,” “disaster,” and “state of emergency” have the same meaning as provided in § 44-146.16<\/a>. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nMISCLASSIFICATION OF WORKERS (\u00a7 40.1-28.7:7)\n\nA. An individual who has not been properly classified as an employee may bring a\ncivil action for damages against his employer for failing to properly classify\nthe employee if the employer had knowledge of the individual’s\nmisclassification. An individual’s representative may bring the action on\nbehalf of the individual. If the court finds that the employer has not properly\nclassified the individual as an employee, the court may award the individual\ndamages in the amount of any wages, salary, employment benefits, including\nexpenses incurred by the employee that would otherwise have been covered by\ninsurance, or other compensation lost to the individual, a reasonable attorney\nfee, and the costs incurred by the individual in bringing the action.\n\nB. In a proceeding under subsection A, an individual who performs services for a\nperson for remuneration shall be presumed to be an employee of the person that\npaid such remuneration, and the person that paid such remuneration shall be\npresumed to be the employer of the individual who was paid for performing the\nservices, unless it is shown that the individual is an independent contractor as\ndetermined under the Internal Revenue Service guidelines.\n\nC. As used in this section, “Internal Revenue Service guidelines”\nmeans the most recent version of the guidelines published by the Internal\nRevenue Service for evaluating independent contractor status, including its\ninterpretation of common law doctrine on independent contractors, and any\nregulations that the Internal Revenue Service may promulgate regarding\ndetermining whether an employee is an independent contractor, including 26\nC.F.R. § 31.3121(d)-1.\n\nD. In a proceeding under subsection A, a hiring party providing an individual\nwith personal protective equipment in response to a disaster caused by a\ncommunicable disease of public health threat for which a state of emergency has\nbeen declared pursuant to § 44-146.17 shall not be considered in any\ndetermination regarding whether such individual is an employee or independent\ncontractor. For the purposes of this subsection, the terms “communicable\ndisease of public health threat,” “disaster,” and “state\nof emergency” have the same meaning as provided in § 44-146.16.\n\nHISTORY: 2020, cc. 203, 381; 2021, Sp. Sess. I, c. 448.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}