Virginia Enacts Pro-Worker Overtime Law for Salaried Employees
In 2020 Virginia amended its Wage Theft Law, which we wrote about here. This year, to further bolster employee’s rights to be paid a fair wage, Virginia recently enacted a new law called the Virginia Overtime Wage Act (“VOWA”). In most respects, Virginia’s new law is similar to other overtime laws across the country and similar to federal law with respect to overtime. For example, under the new law, Virginia employers are required to pay overtime if an employee works more than 40 hours in a week and the overtime “premium” is an employee’s regular rate of pay times one-and-a-half.
But there is a provision in the Virginia Overtime Wage Act that is intended to provide extra protection for salaried employees who are eligible for overtime. This may come as a surprise to some, but many employees who receive a salary are entitled to overtime when they work more than 40 hours in a week. Many think that only workers paid by the hour can receive overtime. But, that is not the case. A plumber, for example, who receives a weekly salary of $900 is entitled to overtime if the plumber works more than 40 hours. That being said, there are exceptions under federal law where a salaried employee is NOT entitled to overtime. Such employees need to receive more than $684 per week and be an executive, administrative or professional or work in computer/software design or in outside sales. If you are a salaried employee and you think your employer has been failing to pay you overtime, you should consult with an experienced employee rights attorney like the ones at Herrmann Law. You have rights as an employee. Even if you are not sure, call us. As can be seen below, overtime rules are complicated and depend heavily on state law
The pro-employee provision in the Virginia Overtime Wage Act relates to how the overtime premium — the overtime pay rate — is calculated. Under federal law, using the fluctuating workweek method, the overtime pay rate is calculated by taking all income received (including salary, bonuses, and commissions) and dividing that amount by the number of hours worked. This results in the employee’s “regular rate of pay” which is then used to calculate the overtime pay rate. Using our plumber from above as an example, the plumber received a salary of $900 but worked 50 hours. Under federal law, the regular rate of pay would be $18 an hour ($900 divided by 50). This would entitle the plumber to an overtime pay rate of $27 for the extra 10 hours.
However, for employees working in Virginia, the newly enacted Virginia Overtime Wage Act requires that for “… employees paid on a salary or other regular basis, the regular rate is one-fortieth of all wages paid for that workweek.” See here, Section 40.1-29.2(B)2. This means that our hypothetical plumber receives substantially more in overtime payments under the new Virginia law. Under the Virginia Overtime Wage Act, the regular rate of pay would be $22.50 an hour ($900 divided by 40) meaning that the overtime rate would be $33.75. This would entitle our hypothetical plumber to $337.50 in overtime as calculated under the Virginia Overtime Wage Act versus $270 under the federal fluctuating workweek method of calculating overtime pay.
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For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has violated your rights as an employee, call us. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229.