Filing a Wage and Hour Claim – Virginia
Does Virginia have state overtime laws that are different from federal law?
Virginia state law does not cover the issue of overtime pay. For that reason, only federal law applies in the state.
Does Virginia have a minimum wage that is different from federal law?
Virginia’s minimum wage is tied to the federal minimum wage, which is currently $7.25.
Anyone who is covered by the federal minimum wage law is not covered by Virginia’s minimum wage law. In addition, the following individuals who are not covered by the federal minimum wage are also not covered by Virginia’s minimum wage:
- Farm laborers and employees
- Employees in domestic service in or about a private home or in a charitable institution primarily supported by public funds
- Volunteers for educational, charitable, religious, or nonprofit organizations (no employer-employee relationship)
- Newspaper delivery persons
- Shoe-shine persons
- Golf course caddies
- Concession attendants
- Cashiers in theaters
- Traveling salespersons or outside salespersons working on a commission basis
- Taxicab drivers and operators
- Employees under 18 employed by their mothers, fathers, or legal guardians
- Summer camp employees
- Employees under the age of 16
- Employees paid based on the amount of work they do
- Employees who are 65 or older
- Employees whose earning capacity is impaired by physical or mental disability
- Students and apprentices in bona fide educational or apprenticeship programs
- Employees of employers who do not have at least four persons employed at any one time (immediate family members of employer do not count as employed for this purpose)
- Employees under 18 enrolled full-time in a secondary school, institution of higher education, or trade school, provided they are not working more than 20 hours per week
- Employees of any age enrolled full-time at a secondary school, institution or higher education, or trade school and who are in a work-study program at the place where they are enrolled
- Employees under 18 and under the jurisdiction and direction of a juvenile and domestic relations district court
As a result of these exceptions, very few employees in Virginia are covered by the state minimum wage; the federal minimum wage law is more widely applicable in the state.
Whereas under federal law employers may only count a part of tips against the minimum wage for employees, tipped employees covered only by Virginia law may have all of their tips counted against the minimum wage. It is illegal for your employer to claim that you receive more tips than you do and count those tips against the minimum wage.
Does Virginia have meal and rest break requirements, unlike federal law?
Like federal law, Virginia does not require employers to provide employees with meal or rest breaks. The one exception is for minors (under 16), who must be provided a 30-minute meal or rest period for every five hours worked.
How do I file a wage/hour or labor standards claim in Virginia?
If your employer owes you wages, you can file a wage claim with the Virginia Department of Labor and Industry.
The Department has the authority to investigate wage claims and upon receiving your claim will notify your employer, who may request an informal conference. The Department can also issue final orders awarding the amount of wages due, as well as attorneys’ fees and a civil monetary penalty.
What are my time deadlines?
Do not delay in contacting the Department of Labor and Industry to file a wage claim. There are strict time limits in which charges of wage-and-hour violations must be filed. In order for the Department to act on your behalf, you must file your wage claim within three years from the date on which your wages were due. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the district and federal administrative agencies.
How can I or my attorney pursue a claim in court in Virginia?
If your employer has failed to pay you the minimum wage, instead of going through the Department of Labor and Industry you can file a private lawsuit. The court can award you the amount of the unpaid minimum wages and interest. The court may also require your employer to pay your attorneys’ fees. The statute of limitations for such an action is two years. If your employer has failed to pay your wages (unrelated to the minimum wage), you may also be able to bring a lawsuit based on breach of contract. If you are interested in pursuing this instead of going through the Department of Labor and Industry, you should contact an attorney.
This material was originally prepared by attorney Joseph Jaramillo and former law clerks Keia Cole and Adam Weiss of the law firm Goldstein, Demchak Baller Borgen and Dardarian, and was updated by Professor Douglas D. Scherer, of Touro College, Jacob D. Fuchsberg Law Center. Professor Scherer also serves as the Vice President of Workplace Fairness.
© 2015 Workplace Fairness