The Virginia Overtime Wage Act specifically requires employers to pay 11/2 times an employee’s regular pay rate for hours worked in excess of 40 in a workweek. For nonexempt employees paid on an hourly basis, the regular rate is not only the hourly pay rate but also other wages, such as commissions or nondiscretionary bonuses paid or allocated during the workweek.
As written, the law precludes employers from paying nonexempt employees a fixed salary to cover wages for hours in excess of 40 in a work week on a fluctuating workweek (FWW) basis, a method allowed under federal law. Instead, you must pay time and one-half for each hour a nonexempt employee works over 40 without exception.
Not only does the law favor employees in calculating the overtime rate, it also incorporates special protections for workers seeking to enforce their overtime rights. Importantly, the protections provide for greater penalties on employers that fail to pay the proper amount of overtime and strengthen the procedures employees may use to enforce their rights. Employers that commit overtime wage violations will be subject to liquidated (or double) damages without being able to rely on the federal Fair Labor Standards Act’s (FLSA) “good faith” with “reasonable grounds” defense. Moreover, the Virginia law allows employees to recover treble damages when an employer is found to have committed a “knowing” violation of the law. Such a violation is one where the employer had actual knowledge it wasn’t paying overtime wages and acted in deliberate ignorance or reckless disregard of its overtime obligations. The FLSA has no similar treble damage provision.
On the procedural front, the Virginia Overtime Wage Act contains a longer ...