Virginia’s New Overtime Law Has Real Teeth

By: Jonathan R. Mook

Virginia’s wave of employee friendly legislation continues.  Last year, the General Assembly greatly expanded the scope of the Commonwealth’s employment discrimination laws and began the process of hiking Virginia’s minimum wage toward a $15 per hour target.  This year, the General Assembly turned its attention to overtime protections for Virginia’s workers by enacting the Virginia Overtime Wage Act, which becomes effective July 1, 2021.  The new wage law specifically requires employers to pay 1½ times an employee’s regular rate of pay for hours worked in excess of 40 in a work week.  It also incorporates special protections for employees seeking to enforce their overtime rights.

Importantly, these protections provide for greater penalties on employers who fail to pay the proper amount of overtime and strengthen the procedures that employees may use to enforce their rights.  Thus, employers who commit overtime wage violations will now be subject to liquidated (or double) damages without being able to rely on the federal Fair Labor Standards Act (FLSA) “good faith” with “reasonable grounds” defense.  Moreover, the new Virginia law allows employees to recover treble damages where an employer is found to have committed a “knowing” violation of the law.  Such a violation is one where the employer had actual knowledge that it was not paying overtime wages and acted in deliberate ignorance or reckless disregard of its overtime obligations.

On the procedural front, the Virginia Overtime Wage Act contains a longer statute of limitations than the FLSA by establishing a three-year limitations period for overtime claims and allowing an employee to recover overtime for up to three years.  The FLSA, by contrast, has a two-years limitation period, which may be extended to three years only for willful violations by the employer.

Finally, although Virginia normally does not allow class or collective actions, the Virginia Overtime Wage Act contains an explicit authorization for employees to collectively sue their employer for violating the statute.  This new authorization of collective actions for overtime suits under Virginia law serves to emphasize the importance for all Virginia employers to understand and comply with their wage hour obligations.  The last thing that an employer wants to contend with is a collective action by its employees seeking three-year’s worth of overtime pay with the amount being trebled for “knowing” violations.

We at DiMuroGinsberg are here to assist you in understanding and complying with your legal obligations.  If you have any questions pertaining to the Virginia Overtime Act or other matters pertaining to Virginia’s employment laws, please contact DiMuroGinsberg partner, Jonathan R. Mook at