Category Archives: Payment of Wages

The Growing Trend Toward Pay Transparency in Virginia

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In recent years, pay transparency has emerged as notable trend in the employment sector. Pay transparency laws require employers to disclose salary ranges and compensation details in job postings and upon request. The primary motivation behind this shift is to promote pay equity, particularly addressing disparities based on gender, race, and disability.​

Several states have already enacted pay transparency laws. As as of 2025, at least 11 states have comprehensive requirements in place. California’s Senate Bill 1162 mandates that employers with 15 or more employees include salary ranges in all job postings, including those for remote positions. Similarly, Colorado’s Equal Pay for Equal Work Act requires employers to disclose compensation in all job postings and prohibits retaliation against employees who discuss their pay.​

However, the implementation of pay transparency laws is not without challenges. One concern is the potential for pay compression, where salary differences between employees with varying levels of experience and tenure become narrower. This could lead to dissatisfaction among long-term employees who may feel their experience is undervalued. Additionally, employers may face difficulties in setting competitive salaries if they are required to disclose compensation ranges, potentially limiting their flexibility in negotiations.

Virginia has actively considered pay transparency legislation but has not yet enacted comprehensive requirements. Most notably, Senate Bill 1132 was introduced during the 2025 General Assembly session, which would have required employers with 50 or more employees to disclose wage ranges in job postings and prohibited inquiries about salary history. The bill passed both chambers in the General Assembly but was vetoed in March 2025, but ​the upcoming change in administration could lead to the eventual enactment of similar legislation.

However, Virginia does maintain existing protections under Virginia Code § 40.1-28.7:9, which prohibits employers from retaliating against coworkers who discuss their respective wages with coworkers. As drafted “[n]o employer shall discharge from employment or take other retaliatory action against an employee because the employee … inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation.” For Virginia employers, the lack of state-mandated pay transparency means compensation disclosure remains voluntary, as existing laws focuses exclusively on wage discussion protections without the salary posting requirements found in other states.

However, even without a Virginia mandate, local employers still must navigate pay transparency if they recruit or employ remote workers in states with disclosure requirements. Many state laws apply when an employee could potentially work from that state, regardless of where your business is headquartered. If you post positions available to remote workers nationwide, you may need to include salary ranges to comply with other jurisdictions’ laws.

Virginia Employment Lawyer

dsgordonlaw.com

FLSA Salary Exemption Thresholds to Increase on July 1, 2024

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The Fair Labor Standards Act (FLSA) is undergoing significant revisions concerning salary exemptions for executive, administrative, and professional employees. The U.S. Department of Labor (DOL) has finalized a new rule, effective from July 1, 2024, which raises the salary threshold for exempt employees under these categories.

In review, the FLSA regulates payment of minimum and overtime wages, ensuring fair compensation for employees across various industries in the United States. Under the FLSA, certain employees may qualify for exemption from minimum wage and overtime pay requirements under the executive, administrative, or professional classifications. These exemptions, commonly denoted as the “white collar” exemptions, are contingent upon a series of tests evaluating both salary and job duties.

To qualify for the exemption, the employee first must be paid on a “salaried” basis. The salary basis test mandates that employees receive a predetermined, fixed salary immune to reductions stemming from variations in work quality or quantity, guaranteeing a minimum level of compensation for any week involving work performance. In addition, the salary must exceed a minimum threshold.

The new DOL rule increases the threshold salary level previously set at $684 per week. For executive, administrative, and professional employees, the salary threshold increases to $844 per week effective July 1, 2024, translating to an annual salary of $43,888. The threshold then is to be raised to $1,128 per week or $58,656 annually, commencing January 1, 2025. The threshold for highly compensated employees similarly increases from $107,432 to $132,964. Furthermore, the introduction of periodic adjustments is slated to occur every three years, starting from July 1, 2027.

Salary based compensation is not the only criteria for the overtime exemption under the FLSA. Employees also must satisfy the “job duties” test, which delineates several categories of potentially exempt employees. For the executive exemption, the employee’s primary duty must entail managing the enterprise or a recognized department, involving supervision of at least two full-time employees and possessing the responsibility to hire or fire personnel. Similarly, the administrative exemption necessitates primary duties encompassing office or non-manual work directly related to business operations, coupled with discretion and independent judgment on significant matters. Finally, the professional exemption applies to roles demanding advanced knowledge in specialized fields, typically acquired through advanced education.

Compliance with these new standards requires employers to reassess their payroll structures. Crucially, job titles alone do not confer exempt status; rather, exemption eligibility hinges upon the alignment of an employee’s specific job duties and salary with the Department of Labor’s regulatory standards.

Virginia Minimum Wage Law: Status Update March 2024

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Virginia Governor Glenn Youngkin has vetoed Virginia’s latest proposed minimum wage increase. The subject bill, which had passed the House of Delegates with a 51-49 party-line vote, aimed to raise the current minimum wage of $12 per hour to $13.50 by January 2025 and then to $15 by January 2026. The preceding wage law from 2020 incrementally raised the minimum wage from $9.50 to $12.00 per hour as of January 1, 2023.


Governor Youngkin’s veto of the bill will continue to stir debate across the state. Youngkin argues that the non-market increases in wages would raise costs on small businesses, without regard to economic differences in the varying regions across the state. Advocates for the wage increase argue that it would help working families afford basic necessities and keep up with inflation. Additional debate continues as to whether government mandated wage increases, as opposed to free-market increases, contribute to rises in inflation.


While additional wage increases between 2023 and 2026 required legislative action, Va. Code Section 40.1-28.10 still includes a unique wage adjustment scheme. Beginning October 1, 2026, and every year thereafter, the state must determine the adjusted state hourly minimum wage for the following January 1. The adjusted wage is calculated by adding (i) the current state hourly minimum wage rate to (ii) a percentage of that rate equivalent to the percentage increase in the United States Average Consumer Price Index for all urban consumers (CPI-U) published by the Bureau of Labor Statistics, or a successor index, over the most recent available calendar year. This adjustment ensures that the minimum wage keeps pace with inflation, and the adjustment amount cannot be negative.

Are Employees Entitled to a Copies Personnel Files and Pay Records?

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Personnel Files

In Virginia, the ability to access employee personnel files varies between private and public sector employees. Absent a subpoena or litigation discovery process, private sector employees in Virginia do not have a statutory right to obtain a copy of their complete personnel files, which are considered the property of the employer. In contrast, public sector employees in Virginia generally have the right to review their personnel files.

Job and Pay Information

However, Virginia law does guarantee access to certain information for all employees. VA Code § 8.01-413.1(B), mandates that employers furnish employees, upon written request, copies of employment records reflecting:

  1. Dates of Employment
  2. Wages or Salary Information
  3. Job Description and Title
  4. Work-Related Injuries

Timely Compliance

Employers are obligated to respond to employee requests within 30 days. If this timeframe is unattainable, the employer may extend the response period by an additional 30 days upon providing a written explanation of the reason for the delay. The employer may charge a reasonable fee for the records. If the records or papers are kept in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records or papers are kept in electronic format, the employer may charge a reasonable fee for the electronic records.

Enforcement

Should an employer fail to comply with a written request, the employee may obtain a subpoena duces tecum, as stipulated in VA Code § 8.01-413.1(C). If a court determines that an employer willfully refused compliance, whether by ignoring subsequent requests or imposing excessive charges, the court may award damages for all expenses incurred by the employee to obtain such copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.

Can your employer prevent you from sharing wage information with others?

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In the past, it was not uncommon for employers to enforce strict confidentiality policies that limited an employee’s ability to discuss their own wage or salary information with co-workers, presumably for the purpose of deterring requests for wage increases or concealing disparate pay structures.

Passed in 2020, Virginia Code Section 40.1-28.7:9 now holds that “no employer shall discharge from employment or take other retaliatory action against an employee because the employee (i) inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation or (ii) filed a complaint with the Department alleging a violation of this section.” However, the law does specifically address restrictions on prior employees, thereby leaving open the issue of whether employers can enforce confidentiality provisions in settlement or severance agreements entered into post-termination.

On the national level, the National Labor Relations Act (NLRA) also prohibits employers from disciplining non-supervisory employees for discussing their pay with co-workers. The NLRA protects employees’ rights to engage in “protected concerted activities,” which includes discussing wages, benefits, and other working conditions with their colleagues.

In combination, these law provide protection for employees who discuss their wages with other employees, and employers who violate these protections can face legal consequences. Employees who believe they have been retaliated against for discussing their wages or for filing a complaint related to wage discrimination can file a complaint with the appropriate government agency or seek legal counsel.

2023 Minimum Wage Increase

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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.

Can your employer avoid overtime payments by using an adjustable pay scheme?

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In U.S. Department of Labor v. Fire & Safety Investigation Consulting Services, the Fourth Circuit addresses an overtime claim where the employer utilized a “blended” pay scheme that changed depending on the total hours worked in a two week pay period.


The FLSA requires that covered employers pay their employees “at a rate not less than one and one-half times the regular rate for any hours worked in excess of 40 hours per workweek. At issue in this case was the definition of an employee’s “regular rate.” Typically, the regular rate is the hourly rate that the employer pays the employee for the normal, non-overtime forty hour workweek. However, in some cases, employers may attempt to assert that their pay scheme is intended to cover the base pay for all overtime hours.

In this case, the Fourth Circuit rejects the employer’s argument, cautioning that employers should not reply upon “creative” pay schemes that retroactively calculate overtime and non-overtime components for the benefit of the employer.


https://law.justia.com/cases/federal/appellate-courts/ca4/18-1632/18-1632-2019-02-08.html