Bill Text: VA HB551 | 2018 | Regular Session | Prefiled
Bill Title: Nonpayment of wages; private cause of action by an employee.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced - Dead) 2018-02-05 - Failed to report (defeated) in Courts of Justice (9-Y 9-N) [HB551 Detail]
Download: Virginia-2018-HB551-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §40.1-29 of the Code of Virginia is amended and reenacted as follows:
§40.1-29. Time and medium of payment; withholding wages; written statement of earnings; agreement for forfeiture of wages; proceedings to enforce compliance; penalties.
A. 1. All
employers operating a business shall establish regular pay periods and rates of
pay for employees except executive personnel. All such employers shall pay
salaried employees at least once each month and employees paid on an hourly
rate at least once every two weeks or twice in each month, except that (i) a
student who is currently enrolled in a work-study program or its equivalent
administered by any secondary school, institution of higher education or trade
school, and (ii) employees whose weekly wages total more than 150 percent of
the average weekly wage of the Commonwealth as defined in §65.2-500, upon
agreement by each affected employee, may be paid once each month if the
institution or employer so chooses. Upon termination of employment, an employee shall be paid all
wages or salaries due him for work performed prior thereto; such payment shall
be made on or before the date on which he would have been paid for such work
had his employment not been terminated.
2. Any such employer who
knowingly fails to make payment of wages in accordance with this section shall
be subject to a civil penalty not to exceed $1,000 for each violation. The
Commissioner shall notify any employer who he alleges has violated any
provision of this section by certified mail. Such notice shall contain a
description of the alleged violation. Within 15 days of receipt of notice of
the alleged violation, the employer may request an informal conference
regarding such violation with the Commissioner. In determining the amount of any
penalty to be imposed, the Commissioner shall consider the size of the business
of the employer charged and the gravity of the violation. The decision of the
Commissioner shall be final.
B. Payment of wages or salaries shall be (i) in lawful money of the United States, (ii) by check payable at face value upon demand in lawful money of the United States, (iii) by electronic automated fund transfer in lawful money of the United States into an account in the name of the employee at a financial institution designated by the employee, or (iv) by credit to a prepaid debit card or card account from which the employee is able to withdraw or transfer funds with full written disclosure by the employer of any applicable fees and affirmative consent thereto by the employee. However, an employer that elects not to pay wages or salaries in accordance with clause (i) or (ii) to an employee who is hired after January 1, 2010, shall be permitted to pay wages or salaries by credit to a prepaid debit card or card account in accordance with clause (iv), even though such employee has not affirmatively consented thereto, if the employee fails to designate an account at a financial institution in accordance with clause (iii) and the employer arranges for such card or card account to be issued through a network system through which the employee shall have the ability to make at least one free withdrawal or transfer per pay period, which withdrawal may be for any sum in such card or card account as the employee may elect, using such card or card account at financial institutions participating in such network system.
C. No employer shall withhold any part of the wages or salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without the written and signed authorization of the employee. An employer, upon request of his employee, shall furnish the latter a written statement of the gross wages earned by the employee during any pay period and the amount and purpose of any deductions therefrom.
D. No employer shall require any employee, except executive personnel, to sign any contract or agreement which provides for the forfeiture of the employee's wages for time worked as a condition of employment or the continuance therein, except as otherwise provided by law.
E. An employer who willfully and with intent to defraud fails or refuses to pay wages in accordance with this section:
1. To an employee or employees is guilty of a Class 1 misdemeanor if the value of the wages earned and not paid by the employer is less than $10,000; and
2. To an employee or employees is guilty of a Class 6 felony (i) if the value of the wages earned and not paid is $10,000 or more or (ii) regardless of the value of the wages earned and not paid, if the conviction is a second or subsequent conviction under this section.
For purposes of this section, the determination as to the "value of the wages earned" shall be made by combining all wages the employer failed or refused to pay pursuant to this section.
F. The Commissioner may require a written complaint of the
violation of this section and, with the written and signed consent of an
employee, may institute proceedings on behalf of an employee to enforce
compliance with this section, and to collect any moneys unlawfully withheld from
such employee which shall be paid to the employee entitled thereto. In
addition, following the issuance of a final order by the Commissioner or a
court, the Commissioner may engage private counsel, approved by the Attorney
General, to collect any moneys owed to the employee or the Commonwealth. Upon
entry of a final order of the Commissioner, or upon entry of a judgment,
against the employer, the Commissioner or the court shall assess attorney's attorney
fees of one-third of the amount set forth in the final order or judgment.
G. In addition to being subject to any other penalty provided by the provisions of this section, any employer who fails to make payment of wages in accordance with subsection A shall be liable for the payment of all wages due, plus interest at an annual rate of eight percent accruing from the date the wages were due.
H. Any employer who knowingly
fails to make payment of wages in accordance with subsection A shall be subject
to a civil penalty not to exceed $1,000 for each violation. The Commissioner
shall notify any employer who he alleges has violated any provision of this
section by certified mail. Such notice shall contain a description of the
alleged violation. Within 15 days of receipt of notice of the alleged
violation, the employer may request an informal conference regarding such
violation with the Commissioner. In determining the amount of any penalty to be
imposed, the Commissioner shall consider the size of the business of the
employer charged and the gravity of the violation. The decision of the
Commissioner shall be final. Civil penalties owed under
this section shall be paid to the Commissioner for deposit into the general
fund of the State Treasurer. The Commissioner shall prescribe procedures for
the payment of proposed assessments of penalties which that are not contested by
employers. Such procedures shall include provisions for an employer to consent
to abatement of the alleged violation and pay a proposed penalty or a
negotiated sum in lieu of such penalty without admission of any civil liability
arising from such alleged violation.
I. Final orders of the Commissioner, the general district courts, or the circuit courts may be recorded, enforced, and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner or the court as appropriate.
J. In addition to any civil or criminal penalty provided by this section, and without regard to any alternative administrative remedies provided for in this section, if an employer fails to pay wages to an employee in accordance with this section, the employee may bring an action against the employer in a court of competent jurisdiction to recover payment of the wages plus prejudgment interest thereon as provided in subsection G. If the court finds that:
1. The employer knowingly failed to pay wages in accordance with this section, the court shall award the employee, in addition to the amount of the wages due and prejudgment interest, the employee's reasonable attorney fees and other costs; and
2. The employer willfully and with intent to defraud failed or refused to pay wages in accordance with this section, the court shall award the employee, in addition to prejudgment interest and the employee's reasonable attorney fees and other costs, an amount equal to three times the amount of wages due.
