Getting paid-Changes in Minimum Wage and Overtime Pay in Virginia
Getting Paid: Some Questions and Answers About Virginia’s Wage Laws
How much is the new minimum wage? Should I be getting paid overtime? Can I get comp time? This article provides an overview of changes to the laws on how workers are paid in the Commonwealth of Virginia. This summary is limited to Virginia laws, although federal laws may apply in some situations.
What is the minimum wage in Virginia?
On January 1, 2022, the state minimum wage increased to $11.00 per hour for most employees in Virginia. This is part of a graduated schedule that will increase the minimum wage to reach $15.00 per hour by January 1, 2026. While the federal minimum wage remains at $7.25, the higher state wage controls the minimum wage in Virginia.
Some employees are exempt from the minimum hourly wage. The exemptions are complicated so an employer should consult with a lawyer or the Virginia Department of Labor and Industry (VDLI) before paying any employee less than minimum wage.
The exemptions tend to fall into a few categories:
· Tipped employees must be paid $11.00 per hour, totaling tips and wages. These employees receive tips from someone other than their employer and work in a position where tips are customary. Federal law also requires that tipped employees receive direct wages of $2.13 per hour.
· Other exemptions. Workers not considered as employees for purposes of minimum wage laws in Virginia include babysitters working less than 10 hours per week, au pairs, certain farmworkers, workers in certain summer camps, traveling salespersons, golf course caddies, volunteers, work-study students, federally exempt employees, and workers in training.
Both employers and employees should consult with the VDLI to confirm whether the minimum wage requirements apply to a position.
How are wages paid?
This raises two issues: how frequently wages are paid and how they are paid. Hourly employees must be paid every two weeks or twice each month. An exception applies to employees whose wages are greater than 150 percent of the average weekly wage in Virginia, who can then be paid once per month. Salaried employees and students in work-study programs must be paid at least once per month.
Usually, in Virginia, wages are paid with money—legal tender, checks, or drafts. State law provides detailed requirements on how banks can be used and direct deposit implemented. Most wages must be paid in cash but, in some circumstances, wages can be paid by in-kind payment such as meals and lodging. However, private employers may not pay overtime compensation with compensatory leave in place of wages. Only Virginia agencies, localities, law enforcement and fire protection may pay overtime with compensatory leave.
Who is eligible for overtime? How is it calculated?
On July 1, 2021, the Virginia Overtime Wage Act (VOWA) became effective, providing a substantial change from federal law. VOWA requires employers, including small businesses and state and local governments, to pay overtime at a rate of one and a half times the regular rate to hourly employees. Overtime payment is for all hours worked more than 40 hours in a work week. A work week is any measurement of seven consecutive twenty four hour periods. Sick leave and vacation leave do not include hours worked in computing overtime.
VOWA permits limited exemptions for executives, officers, administrators, and certain professionals who are paid by salary. Being paid a salary is not alone an exception to VOWA. The regular rate of pay of a salaried employee entitled to overtime is defined as one-fortieth of their salary. For example, if a salaried employee receives $1000.00 per week, their regular rate of pay is $25.00 per hour. Therefore, required overtime must be paid at $37.50 per hours.
Other workers who may not be entitled to overtime include seasonal recreational workers, certain farm workers, and domestic workers. Limited exemptions are provided for car dealerships, labor organizations, and railroad carriers. Overtime calculations differ for those working on a commission, hospital workers, pieceworkers and tipped employees.
What happens if the employee is not paid?
If an employee is not paid according to minimum wage and overtime laws, they may be eligible to receive back wages. Depending on the nature of the violation, the employee may also receive interest or liquidated damages calculated based on the lost income. In some circumstances, employees who hire a lawyer may recover attorney fees.
· File a claim. Certain employees may file a wage claim with the Virginia Department of Labor and Industry. Contact the Department at laborlaw@doli.virginia.gov or phone at (804) 786-2706 to determine if the claim is eligible and obtain the forms to file the complaint.
· Private litigation. A private lawyer may help aggrieved employees collect evidence, file the complaint, and represent their interests in court. In some situations, the court may order that the employer pay attorney fees. These matters have deadlines for filing that depend on the claim and whether it is a state or federal issue.
· Mediation. Many workplace disputes can be addressed through mediation, including wages. When you cannot resolve a concern on wages directly, a mediator can meet with all parties to help them reach a resolution and minimize the time and expenses of court litigation.
· Other options. Other options may be available to resolve unpaid wages. VOWA permits a class action when an employer fails to comply with the overtime in a way that impacts a class of persons or employees. State laws also provide for civil and criminal penalties in some circumstances. Contact the Virginia Department of Labor and Industry to determine the potential of these options.
If you have questions about getting paid, paying wages, or how mediation can help resolve workplace disputes, contact us for a free consultation with Brenda. We offer mediation and business attorney services in Virginia.