Another obvious ambiguity in vowa is the description of the calculation of the regular rate for hourly workers. The law states: «For employees paid on an hourly basis, the regular hourly wage rate plus any other non-additional wages paid or allocated for that work week, except for amounts excluded from the standard rate by the Federal Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and its implementing rules, shall be divided by the total number of hours worked during that work week.» (Emphasis added.) Read literally, this approach would likely bring the regular wage rate below the minimum wage and appears to be a misnomer. For example, if an employee`s hourly wage is $12.00 and he or she has received no other earnings for a week in which he or she worked 60 hours, his or her regular rate of pay would be $0.20 and his or her overtime rate would be only $0.30. The Virginia law is clear that courts cannot interpret legal language in such a way that it leads to «absurd results» that, as in this case, would violate the FLSA. Employers should consider evaluating how they pay non-exempt workers in Virginia, particularly with respect to non-exempt workers and employees working under FWW agreements. Unit and daily rates may also need to be adjusted to meet VOWA`s requirements for regular rates and overtime. Ambiguities in the law must be resolved by the Virginia General Assembly, DOLI, and/or the courts, but in the meantime, Virginia employers should consider a conservative approach to avoid heavy penalties, including automatic lump sum damages, possible triple damages, mandatory 8% pre-judgment interest charges, and liability for plaintiffs` attorneys` fees and costs. The information in this guide is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., provide legal or other professional services. Since the law is complex in many areas and can change quickly, this information may not apply to a particular situation and may be outdated. Individuals seeking legal advice should contact legal counsel for up-to-date and accurate advice.
In no event shall the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect or consequential damages arising out of the use of this material. The 2022 amendments remove vowa regulations for 2021 and clarify that employers must comply with the RSA`s overtime obligations. The amendments further underscore that this realignment means that employers can once again rely on FSF regulations, guidelines, rules and jurisprudence to determine their overtime obligations to employees over the age of 80. VOWA has adopted many of the exemptions granted to employees for minimum wage and overtime requirements that apply to certain administrative, managerial and professional employees, but has introduced unique methods of calculating overtime pay for non-exempt employees who have been paid with an alternative salary or other formula. In addition, employers can again apply the Federal Method of Calculating Overtime («FWW»), which was effectively prohibited under VOWA. Under the FWW method, an unvaccinated employee receives a weekly wage (regardless of the number of hours worked) plus overtime pay if the employee works more than forty (40) hours in a work week. Overtime pay is based on the employee`s average hourly rate, which is calculated based on the employee`s fixed salary and any non-excludable additional wages (e.g., commissions, bonuses or risk payments) are divided by the number of hours actually worked during that week. For a working time of more than forty (40) hours, the employee receives 0.5 times more than the average hourly rate. Since an employee`s regular rate of pay is calculated on the basis of the number of hours worked and not on a forty (40) hour week, the FWW calculation method was not permitted under VOWA.
HB 1173 (Ware) and SB 631 (Barker) are similar bills that amend the code to remove provisions of the Virginia Overtime Wage Act that led to the DOLI interpretation eliminating the ability of public bodies to provide comp time instead of paying time for public bodies. VACo also takes care of these invoices. HB 1173 passed the House by a vote of 59 to 40. The Senate Trade and Labor Committee was established on July 7. And voted to include SB 365 in SB 631 and later unanimous report 15-0. VACo is grateful to the patrons for their efforts and urges its members to support these bills. Employees who have already taken compensatory leave before July 1, 2021 may use the existing leave until exhaustion.