As of next week, Virginia’s Overtime Wage Act will be in effect, imposing new state standards for calculating overtime pay that differ somewhat from the Fair Labor Standards Act, particularly for non-exempt employees who are paid on salary or another fixed basis. Please click here to view the Virginia Department of Labor and Industry’s frequently asked questions page that covers the new law.
Under the new law, Virginia employers must calculate a non-exempt salaried employee’s hourly overtime-eligible wage as 1/40th of their total wages paid for a workweek, defined as any seven consecutive days. That portion of the law does not seem to include any kind of exemption for other amounts generally excluded from the regular rate under FLSA; the law does note the exemption when describing the OT-pay calculations for non-exempt workers who are explicitly paid hourly.
In addition, the law affords employees up to three years to file claims for back wages, if they believe their employer underpaid them, and establishes an 8-percent interest charge for any back wages that a court determines the employer owns. As of last July, Virginia employers can, for the first time, file a civil suit on their own in a state court, and this bill provides for collective or class-action suits. Historically, the ability to file class-action lawsuits in state court has been heavily restricted in the commonwealth.
In addition, if a non-exempt employee is misclassified, the new Virginia law appears to entitle a successful claimant to recover not just the extra 50 percent hourly wage for any time that they had worked over 40 hours, but to fully claim the entire time-and-a-half for all hours worked over 40 in a week while they were misclassified.
We continue to encourage you to speak with your legal advisor to ensure you are prepared and in full compliance beginning next Thursday.Download Bulletin PDF