Bill Text: VA SB631 | 2022 | Regular Session | Enrolled
Bill Title: Fair Labor Standards Act; employer liability, overtime required for certain employees, report.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2022-04-11 - Governor: Acts of Assembly Chapter text (CHAP0462) [SB631 Detail]
Download: Virginia-2022-SB631-Enrolled.html
Be it enacted by the General Assembly of Virginia:
1. That §§40.1-29, 40.1-29.1, and 40.1-29.2 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding a section numbered 40.1-29.3 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. All employers operating a business or engaging an individual to perform domestic service 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.
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. On each regular pay date, each employer, other than an employer engaged in agricultural employment including agribusiness and forestry, shall provide to each employee a written statement, by a paystub or online accounting, that shows the name and address of the employer; the number of hours worked during the pay period if the employee is paid on the basis of (i) the number of hours worked or (ii) a salary that is less than the standard salary level adopted by regulation of the U.S. Department of Labor pursuant to §13(a)(1) of the federal Fair Labor Standards Act, 29 U.S.C. §213(a)(1), as amended, establishing an exemption from the Act's overtime premium pay requirements; the rate of pay; the gross wages earned by the employee during the pay period; and the amount and purpose of any deductions therefrom. The paystub or online accounting shall include sufficient information to enable the employee to determine how the gross and net pay were calculated. An employer engaged in agricultural employment including agribusiness and forestry, upon request of its employee, shall furnish the employee 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 or § 40.1-29.2
40.1-29.3, unless the failure to pay was because of a bona fide dispute
between the employer and its employee:
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 or § 40.1-29.2
40.1-29.3.
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 and § 40.1-29.2
40.1-29.3.
F. The Commissioner may require a written complaint of the
violation of this section or §40.1-29.2 and, with the written and
signed consent of an employee, may institute proceedings on behalf of an
employee to enforce compliance with this section or §40.1-29.2, and to
collect any moneys unlawfully withheld from such employee that 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 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 or §40.1-29.2 shall be liable for
the payment of all wages due, and an additional equal amount as liquidated
damages, 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 or § 40.1-29.2 40.1-29.3 shall be
subject to a civil penalty not to exceed $1,000 for each violation. The
Commissioner shall notify any employer that the Commissioner alleges has
violated any provision of this section or § 40.1-29.2 40.1-29.3
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 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 exhaustion of alternative
administrative remedies provided for in this section, if an employer fails to
pay wages to an employee in accordance with this section or §40.1-29.2,
the employee may bring an action, individually, jointly, with other aggrieved
employees, or on behalf of similarly situated employees as a collective action
consistent with the collective action procedures of the Fair Labor Standards
Act, 29 U.S.C. §216(b), against the employer in a court of competent
jurisdiction to recover payment of the wages, and the court shall award the
wages owed, an additional equal amount as liquidated damages, plus prejudgment
interest thereon as provided in subsection G, and reasonable attorney fees and
costs. If the court finds that the employer knowingly failed to pay wages to an
employee in accordance with this section or §40.1-29.2, the court shall
award the employee an amount equal to triple the amount of wages due and
reasonable attorney fees and costs.
K. As used in this section, a person acts "knowingly" if the person, with respect to information, (i) has actual knowledge of the information, (ii) acts in deliberate ignorance of the truth or falsity of the information, or (iii) acts in reckless disregard of the truth or falsity of the information. Establishing that a person acted knowingly shall not require proof of specific intent to defraud.
L. An action under this section or §40.1-29.2 shall be
commenced within three years after the cause of action accrued. The period for
filing is tolled upon the filing of an administrative action under subsection F
until the employee has been informed that the action has been resolved or until
the employee has withdrawn the complaint, whichever is sooner.
§40.1-29.1. Investigations of employers for nonpayment of wages.
If in the course of an investigation of a complaint of an
employer's failure or refusal to pay wages in accordance with the requirements
of §40.1-29 or 40.1-29.2, the Commissioner acquires information creating
a reasonable belief that other employees of the same employer may not have been
paid wages in accordance with such requirements, the Commissioner shall have
the authority to investigate whether the employer has failed or refused to make
any required payment of wages to other employees of the employer as required by
§40.1-29 or 40.1-29.2. If the Commissioner finds in the course of such
investigation that the employer has violated a provision of §40.1-29 or
40.1-29.2, the Commissioner may institute proceedings on behalf of any
employee against his employer. Such proceedings shall be undertaken in
accordance with the provisions of §40.1-29, except that the Commissioner shall
not require a written complaint of the violation or the written and signed consent
of any employee as a condition of instituting such proceedings.
§40.1-29.2. Employer liability.
A. As used in this section:
"Employ" includes to permit or suffer to work.
"Employee" means any individual employed by an
employer, including employees of derivative carriers within the meaning of the
federal Railway Labor Act, 45 U.S.C. §151 et seq. "Employee" does
not include the following: (i) any individual who volunteers solely for humanitarian,
religious, or community service purposes for a public body, church, or
nonprofit organization that does not otherwise employ such individual, (ii) any
person who is exempt from the federal overtime wage pursuant to 29 U.S.C. §
213(a), and (iii) any person who meets the exemptions set forth in 29 U.S.C. §
213(b)(1) or 213(b)(11).
"Employer" means any person acting directly or
indirectly in the interest of an employer in relation to an employee.
"Employer" does not include any labor organization, other than when
acting as an employer; anyone acting in the capacity of officer or agent of
such labor organization; or any carrier subject to the federal Railway Labor
Act, 45 U.S.C. §§151 through 188, except derivative carriers within the
meaning of the federal Railway Labor Act.
"Person" means an individual, partnership,
association, corporation, business trust, legal representative, any organized
group of persons, or the Commonwealth, any of its constitutional officers,
agencies, institutions, or political subdivisions, or any public body. This
definition constitutes a waiver of sovereign immunity by the Commonwealth.
"Wages" means the same as that term is defined in
§40.1-28.9.
"Workweek" means a fixed and regularly occurring
period of 168 hours or seven consecutive 24-hour periods. It need not coincide
with the calendar week and may begin on any day and at any hour. The beginning
of the workweek may be changed if the change is intended to be permanent and is
not designed to evade the overtime requirements of this section.
B. For any hours worked by an employee in excess of 40
hours in any one workweek, an employer shall pay such employee an overtime
premium at a rate not less than one and one-half times the employee's regular
rate, pursuant to 29 U.S.C. §207. An employee's regular rate shall be
calculated as follows:
1. For employees paid on an hourly basis, the regular rate
is the hourly rate of pay plus any other non-overtime wages paid or allocated
for that workweek, excluding any amounts that are excluded from the regular
rate by the federal Fair Labor Standards Act, 29 U.S.C. §201 et seq., and its
implementing regulations, divided by the total number of hours worked in that
workweek.
2. For employees paid on a salary or other regular basis,
the regular rate is one-fortieth of all wages paid for that workweek.
C. For fire protection or law-enforcement employees of any
public sector employer for whom 29 U.S.C. §207(k) applies, such employer shall
pay an overtime premium as set forth in this section for (i) all hours worked
in excess of the threshold set forth in 20 U.S.C. §207(k) and (ii) any
additional hours such employee worked or received as paid leave as set forth in
subsection A of §9.1-701.
D. An employer may assert an exemption to the overtime
requirement of this section for employees who meet the exemptions set forth in
29 U.S.C. §213(a)(1) or for employees who meet the exemptions set forth in 29
U.S.C. §§213(b)(1) or 213(b)(11).
E. No agency, institution, political subdivision, or public
body that complies with the requirements of 29 U.S.C. §207(k) and §9.1-701
shall be deemed to have violated subsection B with respect to fire suppression
or law-enforcement employees covered by such statutes.
F. Any employer that violates the overtime wage
pay requirements of this section the federal Fair Labor Standards
Act of 1938, 29 U.S.C. §201 et seq., as amended, and any regulations,
guidance, or rules adopted pursuant to the overtime pay provisions of such
federal act or any related governing case law shall be liable to the
employee for all the applicable remedies, damages, or other
relief available under the federal Fair Labor Standards Act in an action
brought under pursuant to the process in subsection J of §
40.1-29. For the purposes of this section, "employer" and
"employee" shall have the meanings ascribed to them under the federal
Fair Labor Standards Act and all applicable exemptions, overtime calculation
methods, methods of overtime payment, or other overtime provisions within the
federal Fair Labor Standards Act and any attendant regulations, guidance, or
rules shall apply. Any action brought pursuant to this section shall accrue
according to the applicable limitations set forth in the federal Fair Labor
Standards Act.
G. Any action pursuant to this section shall be commenced
within three years after the cause of action accrues.
§40.1-29.3. Overtime for certain employees.
A. As used in this section:
"Carrier" means an air carrier that is subject to the provisions of the federal Railway Labor Act, 45 U.S.C. §181 et seq.
"Derivative carrier" means a carrier that meets the two-part test used by the federal National Mediation Board to determine if a carrier is considered a derivative carrier.
"Employee" means an individual employed by a derivative carrier.
B. An employer shall pay each employee an overtime premium at a rate not less than one and one-half times the employee's regular rate for any hours worked by an employee in excess of 40 hours in any one workweek. An employee's regular rate shall be calculated as the employee's hourly rate of pay plus any other non-overtime wages paid or allocated for that workweek, excluding any amounts that would be excluded from the regular rate by the federal Fair Labor Standards Act, 29 U.S.C. §201 et seq., and its implementing regulations for an individual covered by such federal act, divided by the total number of hours worked in that workweek.
C. If an employer fails to pay overtime 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 overtime wages, and the court shall award the overtime wages owed, an additional equal amount as liquidated damages, and reasonable attorney fees and costs, however, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of this section, the court may, in its discretion, award no liquidated damages or award any amount thereof not to exceed the amount of the unpaid overtime wages.
D. An action under this section shall be commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.
2. That the Secretary of Labor shall convene a work group to review overtime issues pursuant to §40.1-29.2 of the Code of Virginia, as amended by this act. The work group shall include representatives from the business, labor, and legal sectors and state and local governments. The work group shall also include two members of the Senate appointed by the Senate Committee on Rules and two members of the House of Delegates appointed by the Speaker of the House of Delegates. The work group shall submit a report on its findings and recommendations to the Governor and the Chairmen of the House Committees on Appropriations and Commerce and Energy and the Senate Committees on Finance and Appropriations and Commerce and Labor by November 1, 2022.
