On October 13, 2022, the Supreme Court of Virginia decided that individuals may not be held liable as “employers” under the recently amended Virginia Wage Payment Act, Va. Code § 40.1-29 (VWPA). The VWPA was amended effective in July 2020 to allow employees to file private enforcement actions, either individually, jointly, or on behalf of similarly situated employees as a collective action consistent with the collective action procedures of the federal Fair Labor Standards Act. Va. Code § 40.1-29(J).
In Cornell et al. v. Benedict et al., filed in February 2021, two former employees of Christian Psychotherapy Services (CPS) tested the scope of the amended VWPA by filing a collective action against not only CPS, but also two individual former board members of CPS in their individual capacities. The plaintiffs alleged that CPS and the individual defendants jointly violated the VWPA by, among other things, failing to pay the employees’ final wages when the company ceased operations. Plaintiffs argued that the VWPA defines “employer” consistent with the FLSA. The Virginia Circuit Court for the City of Virginia Beach disagreed and dismissed the claims against the two individual defendants, finding that the VWPA’s definition of “employer” is narrower than that of the FLSA.
The Supreme Court of Virginia upheld the Circuit Court’s ruling and held that the VWPA does not provide for liability against individuals for actions taken on behalf of an employer entity. The Court reviewed...
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