Below is an overview of the minimum wage and overtime pay laws that apply to workers in the state of Virginia. Be sure to note that certain provisions of the new Virginia overtime law make it much more favorable to employees than the prior law and federal law (more details below).
Private actions to enforce Virginia’s wage and hour laws, and recover unpaid overtime due to workers, are commonly brought (on a contingent fee basis) by employment law firms such as The Lore Law Firm. If you believe that you have been deprived of the overtime pay that you are legally entitled to, please contact us for a free and confidential review of your situation.
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Minimum Wage Regulations in the State of Virginia
Under Virginia Labor Laws, the state minimum wage will increase from $7.25 to $9.50 per hour as of May 1, 2021.
Further scheduled increases are:
- 1/1/2022: $11.00 per hour
- 1/1/2023: $12.00 per hour
- 1/1/2025: $13.50 per hour
- 1/1/2026: $15.00 per hour
- 1/1/2027: Adjusted based on consumer price index
Minimum wage under the Federal Fair Labor Standards Act (FLSA) is $7.25 per hour.
Like many other states, Virginia labor laws do not regulate or define benefits packages, vacation days, rest breaks or meal periods. Furthermore there are no restrictions on how long an employee may be required to work, or when those hours are, unless the employee is under the age of 16 and falls under the state child labor laws.
Overtime Laws in the State of Virginia
The Virginia state legislature enacted a new state overtime law that goes into effect July 1, 2021 – The Virginia Overtime Wage Act (VOWA). Like the FLSA, the new state law will require overtime pay when a covered, non-exempt employee works more than 40 hours per week. Also like the FLSA, it allows employees to file claims for overtime violations as a collective action, allowing an entire class of workers to participate in a single case.
However, the following provisions of the new Virginia overtime law makes it more favorable to employees than the FLSA:
Damages: Under the FLSA, an employee can seek their unpaid overtime wages and liquidated (double) damages unless the employer can show the violation was made in “good faith”. Under the new VA overtime law, all violations are subject to double damages and ‘knowing’ violations are subject to treble damages.
Statute of Limitations: Under the FLSA, employees can seek back wages for 2 years prior to the date an overtime case is filed and for 3 years, only if the employer is found to have willfully violated the statute. The VA state overtime law allows employees to go back 3 years for all violations.
Calculation of Overtime for Salaried Employees: Under the FLSA, the regular rate of pay for a salaried, non-exempt employee is calculated by dividing the employee’s salary by the number of hours the salary was intended to cover. This is referred to as the Fluctuating Workweek Method (aka Chinese Overtime) and can result in the employee’s salary being divided by more than 40 hours which results in a lower regular rate of pay upon which overtime is calculated. Under the new VA wage law, the regular rate for salaried, non-exempt employees must be calculated by dividing their salary by 40 hours, even if they typically work more hours each week. So, employers in Virginia may no longer use the Fluctuating Workweek Method (aka Chinese Overtime) as a pay scheme to reduce the amount of overtime owed to workers. This change in the legal method of calculating overtime for salaried workers in Virginia can make a very significant difference in the amount of back overtime pay they are able to recover.
Commissioned Employees: There does remain some question as to whether the new Virginia wage law (similar to federal law) provides an exemption for certain employees who are primarily paid on a commission basis. If this exemption does not apply to VA employees, workers such as flag-rate/flat-rate mechanics (who do not work for dealerships) and commission paid salespersons are now entitled to overtime pay under the new, and more favorable, state law.
Virginia Laws Regarding Exempt vs Non-exempt Employees
The general rule is that non-exempt employees are mostly hourly paid workers and those who are paid a salary of less that $684* per week ($455 per week prior to 1/1/20). However, the method and amount of pay are not the only factors that determine eligibility for overtime pay – job duties and responsibilities must also be analyzed. So, workers may be entitled to overtime pay regardless of how they are paid or how much they are paid, IF their job duties do not meet the legal requirements for exemption from overtime.
The new VA state overtime law (effective July 1, 2021) appears to include most of the same exemptions from overtime pay as under federal law, but not all – see section above for some of the ways the new VA wage laws are better for workers. However, as this is a new law, any employee in VA who is not being paid overtime after 40 hours per week should have their situation reviewed to ensure their employer is complying with the new state law.
* The Department of Labor under the Obama Administration increased this salary amount to $913 per week effective 12/1/2016; however, this increase was blocked by a court ruling. Instead, the Trump Administration only increased the minimum “exempt” salary to $684 per week ($35,568 per year) as of 1/1/2020. Please see this page for the latest updates.
Virginia State Employee Misclassification
Many employers misclassify their workers as independent contractors or 1099 workers. Since the labor laws do not apply to true independent contractors, employers attempt to classify their workers this way to avoid complying with the minimum wage and overtime laws and to avoid their employer payroll tax obligations. For more information on misclassification of employees as independent contractors, see this page.
Case Example of Employee Misclassification
A home health care agency was ordered to pay $1.6 million in back wages and damages after misclassifying health aides as independent contractors. Even after the agency eventually reclassified the workers as employees, it continued to illegally pay “straight-time rates” for overtime hours rather than the legally required overtime rate of one and a-half times their regular rates. The court found that the Home Healthcare Company had violated the overtime pay laws by incorrectly treating over 500 home health aides as independent contractors rather than employees, and by paying straight time for overtime after the aides were reclassified as employees.
Common Overtime Violations in the State of Virginia
A few of the most common overtime violations under Virginia labor laws include:
- You are paid the same hourly rate for all hours worked – “straight time” for overtime
- You receive comp (compensatory) time off instead of overtime pay.
- You are paid overtime, but not all of your wages, bonuses or other compensation are included when calculating your overtime pay rate.
- You are misclassified as an exempt worker or an independent contractor and do not receive any overtime pay.
- You are required to work “off the clock” either before clocking in or after clocking out. (e.g. required training or changing clothes while clocked out).
Regardless of whether the violation is accidental or not, employees have a right to be paid for their labor. When employers fail to follow the law and do not pay employees for overtime hours worked, the employees are entitled to file a lawsuit against their employer to recover their unpaid back wages.
Virginia Overtime Attorneys
At the Lore Law Firm, we represent salaried, hourly, and day-rate workers in an array of employment litigation matters, including unpaid overtime compensation claims in Virginia. Our attorneys, and the Virginia overtime law attorneys we associate with, are passionate about protecting the rights of workers and have helped recover millions of dollars in unpaid overtime wages for our clients.
it is always in your best interests to contact a knowledgeable overtime lawyer to find out if you have an overtime case against your employer. Experienced overtime attorneys such as those at the Lore Law Firm will be able to help you discover if you have a legal case under the FLSA and/or the Virginia labor laws.
Contact us for a free and confidential review of your situation.