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.