Virginia’s new pay law requires a number — not the truth

Every lawyer has seen the posting — Salary: $90,000-$300,000.

Technically, the number is accurate. Practically, it tells an applicant almost nothing.

On July 1, Virginia joins the growing list of states requiring employers to disclose pay information in job postings. Senate Bill 215 and House Bill 636 add § 40.1-28.7:12 to the Code of Virginia. Employers can no longer ask about a candidate’s salary history or use it in hiring or compensation decisions, and every public and internal job posting must include a wage, salary, or pay range.

The law has been welcomed as a win for job seekers. Candidates who once walked into salary negotiations with little information now see a number before they apply.

But disclosure and transparency are not the same thing.

The statute requires a number. It does much less to require that the number actually means anything. That’s because it regulates how employers arrive at a salary range far more than it regulates whether the range tells applicants anything useful.

What the law requires

Virginia’s new pay transparency law, Va. Code § 40.1-28.7:12, takes effect July 1, 2026. It prohibits employers from seeking or relying on a candidate’s wage history, from using that history in hiring or compensation decisions, and from retaliating against applicants who refuse to provide it. It also requires every public and internal job posting to include a wage, salary, or pay range established in “good faith.”

The statute creates a private right of action. An aggrieved employee could recover statutory damages between $1,000 and $10,000, or actual damages if greater, along with attorney’s fees. Before filing suit, however, the applicant must provide written notice, giving the employer 15 business days to correct a noncompliant posting. Correct it within that period, and liability disappears.

What does “good faith” test?

Good faith regulates the inputs, not the output.

The statute identifies what an employer must rely on when establishing a range: an existing pay scale, a previously established range for the position, compensation paid to comparable employees, or the budget for the role. It says much less about whether the resulting number reflects what a qualified applicant is likely to earn.

That distinction is easy to miss because “good faith” sounds like a test of whether the published number is fair or realistic. It isn’t. The statute asks whether the employer had a legitimate basis for arriving at the range, not whether the range reflects what an applicant is likely to earn after accepting the position.

Those are two very different questions.

That’s understandable to a point. Legislatures can regulate disclosure more easily than they can regulate the countless compensation models employers use. The difficulty is that a rule built around documentation rather than realism leaves applicants with the appearance of transparency, not necessarily the substance of it.

An employer can trace a posted range back to an existing compensation model, a budget, or one highly compensated employee. That satisfies the inquiry the statute actually makes. It does not necessarily answer the question applicants care about: What should I reasonably expect this job to pay?

The only factor the statute specifically directs a court to consider is the breadth of the range itself. It does not ask whether the top of the range is realistically attainable, whether anyone besides one exceptional employee earns it, or whether the employer expects to hire anyone at that figure.

Regulate the source, and you have regulated the paperwork behind the figure. You have not regulated the figure.

How will law firms respond?

Predictably, and inside the rules.

I run a law firm. I can say with some candor that firms are well positioned to publish numbers that satisfy this law while telling applicants very little about what the position is likely to pay.

Legal compensation has never fit neatly into a single salary model. Two attorneys with the same title may be paid very differently depending on collections, originations, productivity incentives, hybrid compensation agreements, or the economics of the firm itself. That flexibility has always existed. The new statute doesn’t eliminate it. It simply requires firms to attach a number to it.

Take an eat-what-you-kill model. The highest number in the range belongs to the firm’s best rainmaker. It’s a real number. A first-year associate has virtually no chance of earning it.

Or take a low-base, high-bonus compensation plan. Post the highest total compensation one attorney earned during an exceptional year, and the range is still arguably accurate.

Some firms may also look outside their own market, relying on compensation figures that have little relationship to what they realistically expect to pay. Nothing in the statute ties a posted range to firm size, geographic market or what a typical new hire is expected to earn.

Each example satisfies the statute. None tells an applicant what the firm is likely to offer.

Questions left open

The first open question remaining about the law is whether one exceptional employee can establish the ceiling. If the firm’s highest-producing attorney holds the same title as the posted position, can that person’s compensation define the upper end of the range? On a literal reading, perhaps it can. The statute does not require the range to reflect what a typical employee or new hire is likely to earn.

The second is whether “mathematically possible” satisfies the good-faith requirement. Suppose a new associate could theoretically reach the top of the range by billing 4,000 hours in a year. Nothing in the statute says that figure fails the good-faith test. Good faith starts to mean “defensible on paper,” not “true for the person reading the posting.”

The third concerns benefits and total compensation. The statute defines “wage or salary range” in detail but never defines either “wage” or “salary.” It leaves unanswered whether employers must include bonus potential, benefits or other forms of compensation when calculating the published figure. A firm could argue that benefits belong in the number.

Another could exclude them entirely. Both positions are arguably consistent with the statute. Most employment lawyers recommend posting base salary or wages alone, but that recommendation fills a gap in the statute rather than following an express statutory requirement.

Does the cure period fix any of this?

Not really.

The statute requires written notice before a lawsuit can be filed, giving employers 15 business days to revise a noncompliant posting before liability attaches.

An employer can post an aggressive range. If no one objects, the posting stays up. If someone does object, the employer has an opportunity to revise it before facing statutory liability.

The statute encourages correction after notice. It creates far less incentive to get the posting right before it goes live.

Where it leaves the candidate

The law was presented as a transfer of leverage. Employers would lose the advantage of salary history, and applicants would gain visibility into compensation before deciding whether to apply.

The salary history provisions accomplish that objective. Candidates no longer have to negotiate against their previous compensation.

The posting requirement is different. A published range might still be built around one exceptional performer, an unusually successful bonus year, or another figure that is technically supportable without reflecting what the employer realistically expects to pay the next hire.

Consider two job postings with identical salary ranges. One reflects what the employer typically pays new hires. The other reflects the compensation of one attorney who has spent years building a substantial book of business. From the posting alone, an applicant has no way to distinguish between the two positions.

Candidates receive more information than they did before. But they still don’t know what the job is actually likely to pay.

Where this leaves Virginia employers

The statute regulates the form of disclosure. There has to be a number.

It does much less to regulate the substance behind that number.

Until Virginia courts define what “good faith” requires, or the General Assembly revisits the statute, employers will continue to have considerable room to shape those numbers.

Expect salary postings to become more creative. Whether they become more transparent is another question entirely.

Charles D. Hatley is CEO of Melone Hatley PC, where he focuses on building systems-driven, client-centered family law and estate planning practices. Melone Hatley has offices in Virginia, South Carolina, Texas, and Florida.