TITLE 16. LABOR AND EMPLOYMENT

DEPARTMENT OF LABOR AND INDUSTRY

Proposed Regulation

Title of Regulation: 16VAC15-70. Local Government Union Requirements and Employee Protections (adding 16VAC15-70-10, 16VAC15-70-20, 16VAC15-70-30).

Statutory Authority: §§ 40.1-2.1 and 40.1-6 of the Code of Virginia.

Public Hearing Information:

April 18, 2025 - 10 a.m. - Tuckahoe Public Library, 1901 Starling Drive, Henrico, VA 23229.

Public Comment Deadline: May 23, 2025.

Agency Contact: Cristin Bernhardt, Regulatory Coordinator, Hearing Legal Services Office, Department of Labor and Industry, 6606 West Broad Street, Suite 500, Richmond, VA 23230, telephone (804) 786-2392, or email cristin.bernhardt@doli.virginia.gov.

Basis: Section 40.1-2.1 of the Code of Virginia authorizes the Commissioner of Labor and Industry (commissioner) to establish and maintain an effective and comprehensive occupational safety and health program applicable to employees of the Commonwealth, its agencies, institutions, political subdivisions, or any public body. Section 40.1-6 of the Code of Virginia authorizes the commissioner to make such rules and regulations necessary for the enforcement of Title 40.1 of the Code of Virginia.

Purpose: The proposed regulation is essential to the public health, safety, and welfare because it ensures equal opportunity, application, and protection of the law for local government employers and employees in union elections.

Substance: The proposed regulation (i) defines necessary terms, (ii) extends certain statutory labor protections to local government public employers, and (iii) allows the commissioner to request prosecution by the appropriate attorney for the Commonwealth for all violations of law relating to local government union requirements and employee protections before any court of competent jurisdiction.

Issues: The advantage of the proposed regulation to the public and the Commonwealth is that the regulation clarifies that the identified statutory requirements that currently apply to any private sector union elections apply to union elections for local government employees, thereby providing equal opportunity, application, and protection of the law for local government employers and employees. There are no disadvantages to the agency or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Department of Labor and Industry (DOLI) proposes to promulgate a new regulation concerning local government entities in the Commonwealth and collective bargaining.

Background. Identical Chapters 1209 and 1276 of the 2020 Acts of Assembly² amended § 40.1-57.2 of the Code of Virginia to permit counties, cities, and towns (local government public employers) to adopt local ordinances authorizing them to (i) recognize any labor union or other employee association as a bargaining agent of any public officers or employees, except for Constitutional officers and their employees, and including public school employees and (ii) collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment. Further, the legislation states that for any governing body of a county, city, or town that has not adopted an ordinance or resolution providing for collective bargaining, such governing body is required, within 120 days of receiving certification from a majority of public employees in a unit considered by such employees to be appropriate for the purposes of collective bargaining, to take a vote to adopt or not adopt an ordinance or resolution to provide for collective bargaining by such public employees and any other public employees deemed appropriate by the governing body. The legislation also provides that the prohibition against striking for public employees applies, irrespective of any such local ordinance.

Estimated Benefits and Costs: In addition § 40.1-2.1 of the Code of Virginia states that the provisions within Title 40.1 and the regulations issued pursuant to the authority of that chapter shall not apply to the Commonwealth or any of its agencies, institutions, or political subdivisions, or any public body, unless, and to the extent that, coverage is extended by specific regulation of the commissioner or the board. Thus, according to DOLI, the following provisions of Title 40.1 do not apply to local government employers until the proposed 16VAC15-70 Local Government Union Requirements and Employee Protections becomes effective:³ § 40.1-6 2 of the Code of Virginia, § 40.1-7 of the Code of Virginia, § 40.1-29 C, E, F, G, and H of the Code of Virginia, and § 40.1-49.4 F 2 of the Code of Virginia. For example, the proposed regulation would apply § 40.1-29 C of the Code of Virginia to local government public employers and thereby prohibit an employer from withholding union dues from an employee's pay without the written and signed authorization of the employee, as is already the case for private sector employees. Several localities have initiated collective bargaining,⁴ but no information is available on the provisions or mechanisms used in those agreements.⁵

Businesses and Other Entities Affected. The proposed regulation potentially affects local governments in the Commonwealth and their employees. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁶ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁷ By applying existing statutory requirements to local government public employers, the proposed regulation would affect net costs or net benefits to the degree that collective bargaining agreements do not incorporate the statutory requirements. However, such information is not currently available. Thus, an adverse impact is not indicated.

Small Businesses⁸ Affected.⁹ The proposed regulation does not appear to adversely affect small businesses.

Localities¹⁰ Affected.¹¹ Localities where both the local government and a majority of the public employees wish to have collective bargaining would be particularly affected. As choosing to have collective bargaining would not be required by this regulation, no substantive costs would be imposed on local governments.

Projected Impact on Employment. The proposed regulation does not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposed regulation does not substantively affect the use and value of private property or real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://legacylis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1209.

³ Section 40.1-54.3 of the Code of Virginia, right to vote by secret ballot on labor organization representation, already applies to local governments per the Office of the Attorney General. Section 40.1-62 of the Code of Virginia, employer not to require payment of union dues, etc.; § 40.1-66 of the Code of Virginia, conduct causing violation of article illegal; peaceful solicitation to join union, § 40.1-67 of the Code of Virginia, injunctive relief against violation; recovery of damages; and § 40.1-69 of the Code of Virginia, violation a misdemeanor, already apply to local government by virtue of § 40.1-58.1 of the Code of Virginia, application of article to public employers and employees.

⁴ See https://www.nea.org/nea-today/all-news-articles/pay-planning-time-more-what-collective-bargaining-means-virginia.

⁵ Source: DOLI.

⁶ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁷ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁸ Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁰ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹¹ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Labor and Industry concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed regulation (i) defines necessary terms, (ii) extends certain statutory labor protections to local government public employers and employees, and (iii) allows the Commissioner of Labor and Industry to request prosecution by the appropriate attorney for the Commonwealth for all violations of law relating to local government union requirements and employee protections before any court of competent jurisdiction.

Chapter 70

Local Government Union Requirements and Employee Protections

16VAC15-70-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Commissioner" means the same as that term is defined in § 40.1-2 of the Code of Virginia.

"Employee" means the same as that term is defined in § 40.1-2 of the Code of Virginia.

"Labor organization" means the same as that term is defined in § 40.1-54.3 A of the Code of Virginia.

"Local government public employer" means any county, city, town, or governing body of a locality, including any local school board.

"Secret ballot" means the expression by ballot, voting machine, or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.

16VAC15-70-20. Applicability of statute to local government public employers.

A. Pursuant to § 40.1-2.1 of the Code of Virginia, the commissioner extends coverage of the following provisions to local government public employers:

1. Subdivision 2 of § 40.1-6 of the Code of Virginia;

2. Section 40.1-7 of the Code of Virginia;

3. Section 40.1-49.4 F 2 of the Code of Virginia;

4. Section 40.1-54.3 of the Code of Virginia;

5. Section 40.1-62 of the Code of Virginia;

6. Section 40.1-66 of the Code of Virginia;

7. Section 40.1-67 of the Code of Virginia; and

8. Section 40.1-69 of the Code of Virginia.

B. Pursuant to § 40.1-29 C of the Code of Virginia, to the extent that an alleged violative conduct concerns improper withholding of any dues, fees, or other charges of any kind to any labor union or labor organization, no local government public employer shall withhold any part of the wages or salaries of any employee except for payroll, wage, or withholding taxes or in accordance with law without the written and signed authorization of the employee.

C. To the extent that alleged violative conduct concerns improper withholding of any dues, fees, or other charges of any kind to any labor union or labor organization, § 40.1-29 E through H of the Code of Virginia shall apply to local government public employers.

16VAC15-70-30. Prosecution of violations.

The commissioner may request prosecution by the appropriate attorney for the Commonwealth of all violations of law relating to local government union requirements and employee protections before any court of competent jurisdiction.