Virginia Minimum Wage, Living Wage, and Wage Payment Laws

In 2020, the General Assembly updated and vastly expanded the Virginia Wage Payment Act (“VWPA”) and the Virginia Minimum Wage Act (“VMWA”). Under the updated VWPA, employers may be required to pay meaningful damages if they do not timely and correctly pay their employees. Updates to the VMWA include the first increase to Virginia’s minimum wage for the first time in more than a decade.

In 2021, the General Assembly also enacted a new law, the Virginia Overtime Wage Act, requiring that Virginia employers pay overtime. Prior to this, Virginia has not required overtime wages under the laws of the Commonwealth.

Nationally, employers commit up to fifteen billion dollars per year of wage theft from their employees. The federal and state enforcement of these laws is limited. The only way to hold employers accountable is through private lawsuits. We now have that opportunity in Virginia.

Virginia Minimum Wage Act (“VMWA”)

Under the updated Virginia Minimum Wage Act, the minimum wage increased to (and will increase in the future):

• $9.50 on May 1, 2021;
• $11.00 on January 1, 2022;
• $12.00 on January 1, 2023;
• $13.50 on January 1, 2025 (pending approval by the General Assembly); and
• $15.00 on January 1, 2026.

Virginia Wage Payment Act (“VWPA”)

Failure to Pay for All Hours Worked: Whether knowingly or by neglect, employers regularly fail to pay individuals for all of their work. Some common examples of time for which employers are required to pay their employees, but regularly fail to do so:

• Time spent working through lunch;
• Time spent at work preparing to start a shift; and
• Time spent driving a company vehicle to a job site.

This list is not exhaustive, as there are a variety of other ways an employee’s time may be deemed “on the clock” so as to require payment by the employer.

The damages available under the updated VWPA are robust. The court must award double an employee’s unpaid wages, along with reasonable attorneys’ fees, costs, and interest. If an employee can show that their employer knowingly failed to pay their wages, the court can award three times the unpaid wages owed to them.

Frequency of Pay: The Virginia Wage Payment Act also requires employers to pay salaried employees at least once a month and hourly employees at least once every two weeks or twice a month, and, upon termination of employment for any reason, to pay all final wages on the next regularly scheduled payday.

Prior to the updates to the VWPA, individuals could only report a failure to pay wages to Virginia’s Department of Labor and Industry. Now, if an employer fails to pay wages to an employee in accordance with the statute, the employee may bring a civil action against the employer to recover payment of the wages plus prejudgment interest.

If you think you haven’t been compensated for all the time you’ve worked, or haven’t been timely compensated in accordance with the law, contact us. You worked hard for those wages and do not want to miss the opportunity to collect what is rightfully yours.

Virginia Overtime Wage Act (“VOWA”)

A new law in Virginia, the Virginia Overtime Wage Act, took effect on July 1, 2021. Under this new law, non-exempt employees are owed overtime for all hours worked in excess of 40 hours per workweek.

Critically, overtime must be paid to both salaried and non-salaried employees who are non-exempt. Simply having a salary does not make you exempt from overtime. In determining whether or not an employee is exempt, VOWA looks to exemptions from overtime requirements as laid out in the Fair Labor Standards Act and its regulations.

Pursuant to VOWA, non-exempt hourly employees must be paid overtime at a rate of one and a half times their regular hourly pay for all hours worked in excess of 40 hours per workweek. The calculations for non-exempt salaried employees are more complicated. Non-exempt salaried employees must be paid overtime at a rate of one and a half times the equivalent of one-fortieth of that employee’s weekly salary.

This is a substantial change from the overtime calculations for non-exempt salaried employees under the Fair Labor Standards Act. The most important shift is that some salaried employees are scheduled for more than 40 hours of work per week. Under the Fair Labor Standards Act, that was an acceptable practice. However, under the new Virginia Overtime Wage Act, there is no carve out for those employees. Instead, those employees must earn their salary for the first 40 hours of work and then be paid overtime on top of that salary.

The Virginia Overtime Wage Act also incorporates the robust remedies from the Virginia Wage Payment Act. That means an employer is liable for double the unpaid overtime wages owed to an employee automatically, plus attorneys’ fees, costs, and interest. If an employee can show an employer knowingly failed to pay overtime wages, the employer may be required to pay three times the amount of unpaid overtime wages owed to the employee.