By: Lisa Brennan
A new Virginia law will change the way that courts determine employer responsibility in cases where vulnerable individuals are harmed by employees who commit a serious criminal acts like sexual assault.
Beginning July 1, 2025, the Code of Virginia will include a new section numbered § 8.01-42.6 titled “Liability of employer for criminal sexual assault by employee.”
Under this law, employers can be held vicariously liable in civil court—meaning they may be legally responsible—for the criminal actions of their employees if specific conditions are met.
Historically, Virginia law has held that an employer can only be held liable for an employee’s wrongful actions if those actions were carried out within the “scope of their employment.” Meaning that the employer is only while performing duties related to the employer’s business. Courts have been hesitant to extend this liability to employers when their employees commit criminal acts.
With the change to the law, however, Virginia employers now face potential legal consequences for an employee’s criminal misconduct. Here, we address some key considerations about the new law and what you need to know:
Who is Protected?
The law focuses on “vulnerable victims.” A vulnerable victim includes:
- Patients of healthcare providers
- People with legal disabilities
- Residents of assisted living facilities
- Passengers using nonemergency medical transportation
- Clients of spas or massage therapy businesses
These are individuals who may be more susceptible to harm from a nefarious employee.
What Industries Are Affected?
The law focuses on the status of a “vulnerable person” and specifically mentions industries, such as assisted living facilities and healthcare providers. All care-based services businesses should pay particular attention to this law, however, including nursing homes, group residential living facilities, and childcare settings.
When Is an Employer Liable?
Employers can be found liable in civil lawsuits if:
- The employee was in a job position likely to bring them into contact with the victim;
- The employer failed to take reasonable steps to prevent or control the employee’s harmful actions;
- The employer knew (or should have known) that they had the power and opportunity to control the employee;
- The employee’s actions directly caused injury to the victim.
Type of Harm Covered:
The law applies to serious crimes including criminal sexual assault, child abuse or neglect, and malicious wounding of a minor. The burden of proof is on the plaintiff (the victim). A jury or judge will ultimately determine if the employer is liable based on the particular facts of the case.
What Does this Mean for Employers?
This law strengthens protections for some of Virginia’s most vulnerable residents by creating a distinct avenue for victims to bring a lawsuit forward. For employers, this law serves as an additional warning to carefully screen and supervise employees, particularly in sensitive roles and when working with a vulnerable population.
This new law means that now, more than ever, it is incumbent upon employers to ensure that their business has the appropriate legal framework in place. This includes making sure your business’ employment policies are crafted to protect potential victims. If you have questions on the best ways to structure your business to avoid potential employer liability under this new law, contact the attorneys at Way Law today!