February 7, 2023

Volume XIII, Number 38


February 06, 2023

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Virginia Overtime Requirements are Back in Alignment with the FLSA

On April 11, 2022 Governor Glenn Youngkin signed HB 1173 into law, which replaces various provisions of the Virginia Overtime Wage Act (VOWA) with provisions largely consistent with the Fair Labor Standards Act (FLSA).

When VOWA took effect on July 1, 2021, it was met with backlash from employers in the Commonwealth due to numerous ambiguities and inconsistencies with the FLSA.  In addition, VOWA provided several features that were more employee-friendly than the FLSA, including a longer statute of limitations, double and treble damages, and an impracticable calculation of the regular rate of pay for salaried and other non-hourly paid employees.  For a more detailed discussion of VOWA, see our previous blog post.

Under the revised law set to take effect on July 1, 2022, Virginia’s overtime requirements will now largely mirror the FLSA.  The traditional overtime exemptions under the FLSA are, again, indisputably valid in Virginia.  The new law returns Virginia to the FLSA’s regular rate calculation (i.e., by dividing compensation by the hours the compensation was intended to cover, rather than a flat 40 hours).  As such, Virginia employers can return to using the FLSA’s fluctuating workweek method of paying salaried, non-exempt employees; the FLSA’s rules for calculating overtime due on bonuses, commissions, and other incentive pay; and the FLSA’s exclusions from the regular rate calculation.

Remedies for violations of the overtime pay requirements, as well as the applicable statute of limitations, also mirror the FLSA.  Virginia employers should still be mindful that, outside of overtime claims, employees  have a private right of action under state law for unpaid wages under the Virginia Wage Payment Act (VWPA).  The VWPA provides for increased damages and penalties in comparison to the FLSA, as well as a longer statute of limitations.

In sum, while employers should celebrate the consistency with the FLSA, they should also be mindful of the significant damages that can (still) flow from wage claims in Virginia.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 137

About this Author

Ryan M. Bates Labor & Employment Litigation Attorney Hunton Andrews Kurth Law Firm

Ryan’s practice spans all aspects of employment law. He has distinguished himself as a nationwide litigator handling complex employment litigation, including class actions, collective actions, and “bet the company” litigation. Ryan routinely conducts internal investigations and counsels nationwide clients on difficult compliance issues.

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Ryan A. Glasgow Employment Lawyer Hunton AK

Ryan represents employers and executives in labor matters and complex employment litigation and provides strategic labor and employment advice.

Ryan’s labor and employment litigation experience is both broad and deep, and he is particularly skilled in defending employers against wage and hour class and collective actions. Ryan has been involved in over thirty-five of these cases, along with numerous other single plaintiff wage and hour matters, throughout the country. He has achieved success for his clients in many of these cases, including on...

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Katherine Sandberg Employment Lawyer Hunton Andrews Kurth Law Firm

Katherine has extensive experience in wage and hour class actions and high-stakes trade secrets litigation. She also has a demonstrated track record of favorable outcomes in federal and state courts for clients facing claims of discrimination, harassment, retaliation and unfair competition. Moreover, she has guided clients through difficult interactions with administrative agencies and claimants to resolve disputes before lawsuits are ever filed.

Katherine also has significant experience defending business owners in public accommodation access litigation involving claims of...

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