Legal Insider: Virginia passes pro-employee overtime law

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The Commonwealth of Virginia did not have its own overtime laws until the recent passage of the Virginia Overtime Wage Act (VOWA), in Virginia House Bill 2063, signed on March 30, 2021, by Governor Northam.

Those who were able to argue for lost overtime compensation had to previously rely on federal law, the Fair Labor Standards Act, known as FLSA. While the new VOWA is similar to the FLSA, it increases costs and penalties (both civil and criminal) for Virginia employers that don’t pay required overtime to employees.

Like the FLSA, Virginia’s new overtime law generally requires payment of time and a half at an employee’s regular rate for hours worked in excess of 40 hours in a workweek. But although the law largely tracks federal standards, significant differences are likely to result in new liabilities for Virginia employers and higher damages for overtime violations for employees in Virginia who have not received their overtime pay.

The new Virginia law establishes a new formula for calculations for salaried employees in Virginia, which will yield larger recoveries in overtime cases. VOWA will also yield larger recoveries for misclassified workers. Additionally, while the FLSA has a two-year statute of limitations to bring claims — unless they are willful (intentional), which extends it to three years — VOWA expands this. VOWA extends overtime claims to three years. This will bring greater liability to employers.

Finally, VOWA presumes an employees’ ability to obtain double damages for all overtime violations. The FLSA allows employers to argue they acted in good faith as a defense to such claims. The new VOWA takes this defense away. Under VOWA, all overtime wage violations are subject to double damages (in addition to pre-judgment interest of 8% per year). Finally, VOWA goes further and permits triple damages for employees where an employer had actual knowledge that it failed to pay the overtime wages due and acted in deliberate ignorance or reckless disregard as to whether it was paying all overtime wages owed.

VOWA also includes criminal provisions against employers. Employers can be now found guilty of a Class 1 misdemeanor if the value of the overtime wages earned and not paid is less than $10,000. If the amount unpaid is over $10,000, the employer can be found liable for a Class 6 Felony charge. A felony charge can also apply no matter the amount of wages at issue for a second conviction.

There is a lot to sort out with the new VOWA overtime legislation in Virginia, but employees are going to have much stronger state claims for overtime in the future.

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