No. While the Federal minimum wage for nonexempt employees still remains set at $7.25 per hour, Virginia, like many states, implements its own minimum wage law that supplements Federal standards.
As of January 1, 2023, Virginia’s minimum wage increased to $12 per hour, reflecting an increase from the previous rates of $9.50 (effective May 1, 2021) and $11.00 (effective January 1, 2022). However, there is no further increase in 2024. Absent further amendments, the minimum wage is set to rise again on January 1, 2025, to $13.50 per hour and to $15.00 per hour on January 1, 2026. Additionally, any increase in the federal minimum wage will automatically raise the Virginia rate, as the statute requires payment of the higher of the state or federal minimum wage.
The answer depends on their line or work and their pay structure. FLSA regulations do provide an overtime exemption for certain employees of retail and service establishments who are paid on a commission basis. Retail and service establishments are defined as establishments that have a recognized retail concept and where 75% of sales are not goods for resale. Factors relevant to the “retail concept” might include whether the business sells goods or services to the general public or whether the business participates in the manufacturing process.
To qualify for the exemption under Section 7(i):
1. the employee must be employed by a retail or service establishment;
2. the employee’s regular rate of pay must be at least one and one-half times the applicable minimum wage; and
3. more than half the employee’s total earnings in a representative period must consist of commissions.
The representative period cannot be less than 1 month, or more than one year. If all of these these elements are not satisfied, the employee would remain entitled to overtime pay. Because the employer must verify that the regular rate of pay exceeds 1.5x the minimum wage, the employer still needs to track total hours worked during each pay period.
Prior to 2020, the U.S. Department of Labor published lists of businesses that they considered to be retail or non-retail. The new rule withdraws their arbitrary reliance on the lists, allowing more industries to argue for the exemption.
Historically, the Fair Labor Standards Act has created a national minimum wage for hourly employees. Though the federal minimum wage remains at $7.25 per hour, Virginia is now among the states that have set a higher minimum wage standard under state law. The Virginia Minimum Wage Act, passed in 2020, establishes incremental wage increases that will raise the minimum wage to $15 per hour by 2026. Effective January 1, 2023 the minimum wage in Virginia increases to $12 per hour. Absent amendments to the law, the next increase will occur in January 2025. Virginia law adopts federal exemptions under the FLSA and also includes its own exceptions, such a babysitters working fewer than 10 hours per week, students participating in a bona fide educational programs, golf caddies, taxicab drivers and persons employed in summer camps for children.