In March 2021, then-Governor Ralph Northam (D), backed by a full Democratic majority in the General Assembly (Virginia’s legislative body), signed the Virginia Overtime Wage Act, greatly expanding the State’s overtime requirements effective July 1, 2021. Prior to the Act, Virginia adopted the overtime requirements of the federal Fair Labor Standards Act (FLSA).
During the November 2021 elections, however, Republicans regained a 52-48 majority in the Virginia House of Delegates and a Republican Governor, Glenn Youngkin, was elected. Now, although the Senate remains under control of the Democrats by a three-member margin, Republican lawmakers in both houses are seeking to undo the Virginia Overtime Wage Act, via concurrent House Bill (HB) 1173 and Senate Bill (SB) 631.
The Virginia Overtime Wage Act imposes several requirements that are not present under federal law. For example, although both the FLSA and the Virginia Overtime Wage Act generally obligate employers to pay one and one-half times an employee’s regular rate of pay for hours worked in excess of 40 in a workweek, the Virginia Overtime Wage Act defines the regular rate of pay as one-fortieth (0.025) of all wages paid for the workweek for employees who are salaried or paid on some other regular basis. This requirement may preclude employers from paying traditionally non-exempt employees a fixed salary to cover wages for hours in excess of 40 in a workweek (including on a fluctuating...
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