Wed, 06/30/2021
Effective July 1, 2021, the new Virginia Overtime Wage Act (“VOWA”) will significantly expand the overtime rights of Virginians, exceeding the rights guaranteed by the federal Fair Labor Standards Act (“FLSA”) in several key ways.
First, under both the FLSA and VOWA, employers must pay covered employees at one and one-half times the “regular rate” of pay for all hours of overtime work. However, under VOWA, that “regular rate” must be calculated in one of two specific ways. For “hourly” employees, it is their hourly rate of pay, plus any non-overtime pay that the FLSA would not exclude from the regular rate, divided by all hours of work for that workweek. But for any covered employee “paid on a salary or other regular basis,” the regular rate is “one-fortieth of all wages paid for that workweek.” In other words, for salaried employees, Virginia employers will no longer be able to use an “all hours worked” divisor when calculating their overtime rate. Likewise, the “fluctuating work week” method of calculating overtime pay will also be incompatible with VOWA’s new requirements. For many, this could lead to claims for uncompensated overtime.
Second, the VOWA allows employees additional time in which to bring their claims for unpaid wages. Under the FLSA, the statute of limitations is only two years, expanded to three years only if the employee can show a “willful” violation. But under VOWA, the statute of limitations is three years by default, with no requirement that the employee prove a willful violation.
Third, for fire protection and law-enforcement employees to which “29 U.S.C. § 207(k)” of the FLSA applies, VOWA reaffirms the rule under the Virginia Gap Pay Act that paid leave shall be counted as hours of work, for purposes of calculating overtime.
Fourth, under VOWA, employees will be owed liquidated damages in an amount equal to the overtime back pay awarded and triple damages for “knowing” violations of the law.
If you have questions about the new overtime law in Virginia or think you may not have been fully compensated for your work, please contact us at info@mselaborlaw.com.
