Hope Your 4th Was a Bit of a Break!

July 07, 2021

But now, it’s back to work!   Some of this may repeat what has been said before – and recall that VNPP does not provide legal advice, but:

§40.1-29.2 Virginia Overtime Wage Act was effective on July 1st!  Given the severe staffing shortages everyone is paying more OT than their budgets allow and are creatively trying to incentivize staff to start, to stay, to bring others, and to perform!  Here are some references for you to review, discuss with your counsel and be sure your policies are in line with the VOWA. 

• Virginia Overtime Wage Act
• US Department of Labor – Fair Labor Standards Act re Overtime Pay
• US Department of Labor Fact Sheets – Note #56A & #56C

I have read an analysis that points out that VOWA omits any reference to wages paid as either daily wages or piece-rate which are specifically permitted in FLSA, but rather appears to only allow an hourly rate or salary.  It was suggested that absent any guidance from the Virginia Department of Labor and Industry, those methods of payment may be risky in light of the potential penalty for an overtime violation.   Also of note is the potential for higher costs for overtime if  non-exempt (i.e., overtime eligible) employees are paid on a salary basis rather than an hourly basis.   To  determine the regular rate of pay for the purpose of calculating  “time and a half” for overtime for salaried non-exempt employees, VOWA requires that 1/40th of the compensation for the workweek be used which may result in significantly higher rates for the overtime.