Virginia has enacted important amendments to the state’s wage payment laws that drastically strengthen employees’ ability to confront wage theft. In April 2020, Governor Northam signed Senate Bill 838 and House Bill 123, which amend the Virginia Wage Payment Act.
In a press release, Governor Northam stated, “Every Virginian deserves access to a safe and well-paying job. These new laws will support workers and help our economy rebound as quickly as possible from COVID-19. I am grateful for the General Assembly’s ongoing partnership as we address these critical issues.”
The Virginia Wage Payment Act already regulated the time and manner in which employers had to pay their employees. In addition, the law prohibited an employer from making certain deductions from wages and limited an employer’s ability to reduce an employee’s compensation. The law, however, lacked a meaningful enforcement mechanism, which caused Virginia courts to characterize the statute as regulatory and not remedial. The amendments now provide employees meaningful relief that will almost certainly send lasting reverberations throughout wage theft law.
Kudos to Kim Bobo and Ben Hoyne of the Virginia Interfaith Center, Senator Adam Ebbin, Delegate Jennifer Carroll Foy, and all the advocates who fought hard to enact this important legislation.
Yes. Most importantly, the amendments to the Virginia Wage Payment Act provide employees with the right to sue in court to recover unpaid wages. VA Code § 40.1-29. Previously, only the Virginia Department of Labor and Industry could do so. Before the amendments, victims of wage theft had to rely on breach of contract or a theory called quantum meruit for relief. Mar v. Malveaux, 732 S.E.2d 733, 738–39 (2012).
The amendments to the Virginia Wage Payment Act became effective July 1, 2020. VA Code § 1-214.
The statute does not define “wages.” Virginia courts, however, have described wages as “a compensation given to a hired person for his or her services.” E.g., Commonwealth/Dep’t of Transp. v. Swiney, 477 S.E.2d 777, 778 (1996). Wages include performance-based bonuses and commissions. See, e.g., Blanchard v. Capital One Servs., LLC, 91 Va. Cir. 320 (2015) (citations omitted).
The statute also does not specify who is a covered employee or employer. However, the right to sue to recover unpaid wages applies to all employees, and liability extends to all employers.
The law’s amendments provide for strong remedies. A successful employee will recover any owed wages. In addition, the statute mandates that a prevailing employee is entitled to:
Under the new statute, an employer acts knowingly if it has actual knowledge, deliberately ignores the truth, or recklessly disregards the truth. An employee does not have to prove that an employer specifically intended to have wrongly withheld wages to show a knowing violation.
An employee must bring an action for unpaid wages within three years. In some cases, the filing period can be tolled while an employee pursues administrative remedies under the law.
No. An employee is not required to exhaust administrative remedies before bringing an action in court. However, as noted above, administrative remedies are available, and an employee’s deadline to sue in court may be extended while the employee is pursuing a remedy through the administrative process.
Yes. The amended Virginia Wage Payment Act provides that employees may seek to redress wage theft individually, jointly, or in a collective action. Collective actions follow the same procedures as those provided for by the federal Fair Labor Standards Act.
Under the Wage Payment Act, workers now have the right to sue in court for unpaid wages, including performance-based bonuses and commissions. And a worker may recover unpaid commissions in Virginia on a quantum meruit theory where the parties did not enter into a binding agreement regarding compensation. This may occur where there was no “meeting of the minds” as to how much the plaintiff would be compensated. Where a worker and the hiring party did not agree on the exact commission amount the worker would receive, the worker may try to recover those commissions under quantum meruit.
If your current or former employer has stolen your wages or failed to pay you overtime, call our Virginia unpaid wages attorneys today at 202-262-8959 or submit an inquiry through our contact page.