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Dolley Law LLC

Virginia

Virginia Wage and Hour Law

The attorneys with Dolley Law have traveled across the country representing clients in wage and hour matters. In doing so, we have developed detailed knowledge and expertise in disputes concerning minimum wage, overtime compensation, and wage payments. We can assist you in navigating federal or state requirements for any wage and hour matter. Contact us today.

Virginia Overtime Law

Virginia has not enacted legislation regarding overtime pay requirements, so employers in Virginia should follow federal law—that is, the Fair Labor Standards Act (“FLSA”). See 29 U.S.C. § 207(a)(1). Under the FLSA, nonexempt employees should be paid one-and-one-half times their regular rate of pay for every hour worked over 40 in each workweek. Id.

Virginia Minimum Wage Law

In efforts to ensure fair compensation to employees, both the federal government and Virginia have set forth a minimum wage for hourly employees. See Va. Code Ann. §40.1-28.10; 29 U.S.C. 206(a)(1)(C). Like many other states, Virginia has implemented legislation to gradually increase their minimum wage in the coming years, beginning in 2021. See Va. Code Ann. § 40.1-28.10.

Currently, Virginia employers must pay non-exempt employees the federal minimum wage set forth by the FLSA—$7.25 per hour. Va. Code Ann. § 40.1-28.10(A); 29 U.S.C. § 206(a)(1)(C). The minimum wage will increase on May 1, 2021 to $9.50, then it will increase again on January 1, 2022 to $11 per hour. Va. Code Ann. § 40.1-28.10(B)-(C). These increases will continue until January 2026, when the minimum wage will reach $15 per hour. Va. Code Ann. § 40.1-28.10(B-F).

The method by which the minimum wage rate increases will shift in 2027. See Va. Code Ann. § 40.1-28.10(G)-(H). The Commissioner of Labor and Industry will determine the new wage according to the Consumer Price Index published by the U.S. Department of Labor. Id. The Commissioner of Labor and Industry will announce the new wage for upcoming years by October 1 of the preceding year, then the new wage will take effect January 1. Id.

The state minimum wage applies to many hourly employees; however, some employees, such as those who regularly receive tips, may receive a lower hourly rate. 29 U.S.C. § 213(a); Va. Code Ann. § 40.1-28.9(B). Under the FLSA, tipped employees must receive a minimum hourly rate of at least $2.13 per hour so long as the employee still makes a regular rate that is above the minimum wage when all tips are counted toward weekly compensation. 29 C.F.R. § 516.28 (2019).

Employers of tipped employees must follow state law regarding tipped employees. See Va. Code Ann. § 40.1-28.9(B). Under Virginia law, “tipped employees” are defined as “an employee who in the course of employment customarily and regularly receives tips totaling more than $30 each month from persons other than the employee’s employer.” Id. Although Virginia does not establish a specific minimum hourly rate for tipped employees, employers must still ensure employees receive at least minimum wage when tips are counted toward weekly compensation. See Id.

Potential Liabilities for Wage and Hour Violations

Virginia has similar, but distinct, liabilities as the FLSA for employers who violate wage and hour laws. See 29 U.S.C. § 216(b); Va. Code Ann. § 40.1-28.12. Under the FLSA, employers who underpay employees could be held liable for unpaid wages, liquidated damages, and attorney’s fees. FLSA. 29 U.S.C. § 216(b). If the employer can satisfy a high burden and show they acted in good faith, the court may reduce or eliminate liquidated damages. See 29 U.S.C. § 260(a).

However, Virginia wage and hour laws do not provide for an award of liquidated damages like the FLSA. Instead, in Virginia, employers who fail to pay minimum wages may owe employees any unpaid wages plus 8% interest on the unpaid wages. Va. Code Ann. § 40.1-28.12. Id. Virginia courts may award reasonable attorney’s fees as well. Id. Finally, Virginia established a two-year statute of limitations on claims arising under state law. See Va. Code Ann. § 8.01-248.

Wage Payment Violations

Virginia has additional protections for employees regarding the timing of wage payments. See Va. Code Ann. § 40.1-29(A). Salaried employees must be paid once a month and hourly employees should receive payment at least once every two weeks. Id. Employers who violate these provisions may owe unpaid wages and additional amounts equal to an interest rate of 8% of the unpaid wages. Va. Code Ann. § 40.1-29(G). Employees bringing a cause of action arising out of a dispute concerning withholding of wages must do so within three years of the violation. Va. Code Ann. § 40.1-29(L).

Contact Us

Our Firm represents clients in wage and hour cases in courts throughout the United States. If you reside in Fairfax, Prince William, Virginia Beach, Loudoun, Chesterfield, Henrico, Chesapeake, Norfolk, Arlington, Richmond cities or counties and are seeking attorneys with expertise in state and federal wage and hour requirements, please contact us. We can be reached by phone at 314-645-4100 or by email at kevin@dolleylaw.com.