As we previously reported, in March of 2021, the Virginia Overtime Wage Act (VOWA) was amended and included several principles that were divergent from those under the federal Fair Labor Standards Act (FLSA). Differences between the VOWA and the FLSA included how the regular rate of pay is calculated for salaried non-exempt employees and an increase statute of limitation for wage claims, among others. On April 11, 2022, Virginia Governor Glenn Youngkin signed legislation (HB 1173) amending portions of the law to revert back to the overtime requirements under the FLSA. These changes become effective on July 1, 2022.
The new amendments align the VOWA with FLSA overtime pay provisions and employers will need to follow FLSA overtime pay requirements and exemptions, including:
- Regular wage rate calculations;
- Use of the fluctuating workweek method for overtime compensation;
- All exemptions available under FLSA (29 U.S.C. § 207, § 213(a) and (b)), except the exemption under 29 U.S.C. § 213(b)(3)); and
- All relevant FLSA interpretations and guidance.
The amendments have not changed allowing employees to file individual or collective action claims for unpaid wages and overtime in state courts in addition to a right of action under the FLSA. As a result, employers may be liable for penalties under both the FLSA and the VOWA. The amendments also do not change the period for filing a claim for unpaid wages which is three years versus the two years under the FLSA.
Next Steps for Employers
Until the effect date, employers will need to comply with the current overtime standards and ensure employees are compensate accordingly, but the amendments realignment with FLSA means employers may once again rely on FLSA regulations, guidance, rules and governing case law in determining their overtime obligations to employees come July 1.
