Tag Archives: Overtime

Virginia’s Return to Federal Overtime Standards

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Virginia’s journey into overtime regulation took an interesting turn with the passing of the Virginia Overtime Wage Act (VOWA) in March 2021. However, amidst widespread confusion and concerns from employers, the state has decided to realign its overtime obligations and exemptions with the federal Fair Labor Standards Act (FLSA) beginning July 2022.

The 2022 VOWA amendments largely return the state to the overtime standards that were in place prior to the enactment of the VOWA in 2021. By realigning with the FLSA, employers (and judges) once again can rely on years of federal regulations, DOL guidance, and governing case law to determine their overtime obligations to employees.

While the recent amendments largely align Virginia’s overtime obligations with the FLSA, some significant changes should be noted:

Private Right of Action: The new amendments preserve an employees’ private right of action under VOWA, granting them access to state courts for individual or collective-action claims for unpaid wages and overtime.

Damages and Penalties: Similar to the FLSA, VOWA also allows for heightened damages and penalties for overtime violations. These provisions include automatic liquidated damages equal to the amount of unpaid wages, pre-judgment interest at 8% per year, and civil penalties of $1,000 for each violation, with the possibility of treble damages for “knowing” violations. These enhanced damages could incentivize employees to pursue claims in state courts.

Statute of Limitations: Prior to the 2022 amendments, VOWA had established a three-year statute of limitations for all violations, regardless of whether they were willful. With the changes, the FLSA’s two-year statute of limitations for non-willful violations will be reinstated. However, the VOWA’s imposition of double damages and possible treble damages for knowing violations remains intact.

Virginia’s return to federal overtime standards brings predictability to employers who were grappling with the complexities of the VOWA. By aligning with the FLSA, employers can once again rely on well-established federal regulations and case law to navigate overtime obligations. In any event, the swings of this legislative battle should be a signal for Virginia employers to review their overtime policies and procedures to ensure compliance with the amended laws.

Are Commissioned Employees Entitled to Overtime?

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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.  

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