On April 11, 2022, Virginia Governor Glenn Youngkin signed HB 1173 into law, replacing various provisions of the Virginia Overtime Wage Act (VOWA) making Virginia law more consistent with the federal Fair Labor Standards Act (FLSA).

Under the revised law set to take effect on July 1, 2022, Virginia will now calculate overtime based on a regular rate (i.e., by dividing compensation by the hours the compensation was intended to cover, rather than a flat 40 hours). That means Virginia employers can return to using the FLSA’s fluctuating workweek method of paying salaried, non-exempt employees; the FLSA’s rules for calculating overtime due on bonuses, commissions, and other incentive pay; and the FLSA’s exclusions from the regular rate calculation.

Virginia employers should still be mindful that, outside of overtime claims, employees have a private right of action under state law for unpaid wages under the Virginia Wage Payment Act, which permits increased damages and penalties (beyond the FLSA), as well as a longer statute of limitations.

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For questions about calculating overtime and understanding wage payment issues, contact Laura Rubenstein at LRubenstein@RKWlawgroup.com or 443-379-4013.

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