The Overtime Work Group identified six issues arising out of Senate Bill 631 and House Bill 1173 that amended the 2021 Overtime Wage Act. The Work Group was looking at issues that might require legislative action to address. The six issues and the Work Group recommendations were:

Issue 1. Should DOLI’s Labor and Employment Law Division be allowed to collect the overtime premium on behalf of claimants that come to it for collection of wages owed?

Recommendation: DOLI should be authorized to collect overtime on behalf of complainants. This allows the complainant to make the best choice for them to address their complaint.

Issue 2. Should definitions of “good faith exception" and “reasonable grounds" be included in Code to guide state decisions on liquidated damages?

Recommendation: Good faith determination and definition is currently laid out in court decisions, and codifying a definition might make the Virginia statute out of step with future federal or legal determinations and unnecessarily create a conflict.

Issue 3. Should the penalty regimes in the payment of wage statute and the overtime wage statute be harmonized to avoid confusion?

Recommendation: Our system allows and encourages Virginia and its courts to resolve employment pay dispute without mirroring the federal system. Plaintiffs are masters of their complaint and can choose Virginia’s system or the federal courts. This question confronts many litigants and does not require General Assembly intervention to resolve – in fact, harmonizing the language would likely remove the plaintiffs’ choice altogether. Keeping the current legislation intact preserves that choice and gives the most flexibility to future litigants. Any possible legal confusion over penalties should be resolved by the courts and if it proves to be an ongoing problem can be resolved by future legislation. DOLI shall produce a guidance document on the penalty provisions of the two statutes with the input of stakeholders.

NOTE: DOLI has produced the guidance document and it is attached as Appendix E.

Issue 4. Should the statute of limitation in the payment of wage statute and the overtime wage statute be harmonized to avoid confusion?

Recommendation: Our system allows and encourages Virginia and its courts to resolve employment pay dispute without mirroring the federal system. Plaintiffs are masters of their complaint and can choose Virginia’s system or the federal courts. This question confronts many litigants and does not require General Assembly intervention. All feedback received from stakeholders and the public supports this position. Keeping the current legislation intact preserves that choice and gives the most flexibility to future litigants. Any possible legal confusion over the statutes of limitation should be resolved by the courts and if it proves to be an ongoing problem can be resolved by future legislation. DOLI shall produce a guidance document on the statute of limitation provisions of the two statutes with the input of stakeholders.

NOTE: DOLI has produced the guidance document and it is attached as Appendix E

Issue 5. Certain employees are exempt from overtime when doing agricultural work under provisions of 29 U.S. Code § 213(a)(6), Should this exemption be continued or eliminated from Virginia law?

Recommendation: Agriculture is a traditional, long-standing industry in Virginia and that kind of substantial alteration deserves the full attention of the General Assembly. If the law needs to be changed, the people’s representatives need to determine that for the people.

Issue 6. Certain domestic service employees providing companion care services are exempt from overtime under 29 U.S. Code § 213(a)(15), made applicable in Virginia by § 40.1-29.2. Should this exemption be continued or eliminated from Virginia law?

Recommendation: Domestic service employees providing companion care services is a newer issue and somewhat unique employment relationship. If the law needs to be changed, the people’s representatives need to determine that for the people.