Compliance Watch:
Penalties for Breaking Virginia Labor Laws

February 15th 2024

Labor laws serve as a crucial pillar in protecting the rights and well-being of workers in Virginia. They encompass a wide range of aspects of employment, from wages and hours to working conditions and workplace safety. And when employers find themselves on the wrong side of the law, the penalties for breaking Virginia labor laws can be severe.

This article is your essential roadmap to understanding Virginia’s key labor laws, the penalties for breaking them, and valuable tips for staying compliant. By knowing the rules and consequences, Virginia employers can better foster a productive and respectful work environment.

This Article Covers

Most Common Labor Law Violations in Virginia
Penalties for Breaking Virginia Labor Laws
How You Can Avoid Violating Virginia Labor Laws

Most Common Labor Law Violations in Virginia

Despite the legal safeguards Virginia has to protect the rights and well-being of workers, certain violations remain prevalent across the state. Here’s a look at some of the most common violations that some employers may unintentionally or deliberately violate:

  • Misclassifying Employees: Employee misclassification occurs when employers incorrectly classify workers as contractors instead of employees, denying them the benefits and protections entitled to employees under labor laws. In November 2020, a Virginia study found that around 214,000 workers were misclassified as independent contractors. This resulted in a loss of approximately $28 million in tax revenues each year for the Commonwealth.
  • Wrongful Termination: Wrongful termination refers to the unlawful dismissal of an employee. Virginia is an “at-will” employment state, meaning employers can terminate employees without cause or notice. However, certain exceptions exist, and terminating an employee for reasons such as retaliation, discrimination, or in violation of an employment contract can constitute wrongful termination. Understanding the legal boundaries of termination is crucial to protect employees’ rights and prevent unlawful actions by employers.
  • Wage Theft: This violation can take various forms, including withholding overtime pay, paying below the minimum wage, failing to pay for all the hours worked, or making illegal deductions from wages. From 2017 to 2020, the Virginia Department of Labor and Industry and the Attorney General were able to recover $1,072,587 in employee wages. Wage theft not only deprives workers of their hard-earned income but also undermines their financial stability.

Labor Law. Photo by Tingey Injury Law Firm on Unsplash

Penalties for Breaking Virginia Labor Laws

Virginia takes labor law violations seriously and imposes significant penalties on those who fail to comply with its employment regulations. These penalties aim to ensure accountability and promote a fair and equitable work environment.

Virginia Minimum Wage Act

In 2020, Virginia’s General Assembly enacted legislation to increase the minimum wage gradually. The new law sets a path for the minimum wage to reach $15.00 per hour by the year 2026. Here’s a look at the scheduled increase as set by the new law:

  • $9.50 effective May 1, 2021;
  • $11.00 effective January 1, 2022;
  • $12.00 effective January 1, 2023;
  • $13.50 effective January 1, 2025; and
  • $15.00 effective January 1, 2026.

There are, however, certain exceptions to the standard wage set by the Virginia Minimum Wage Act. This includes caddies on golf courses, minors, outside salesmen working on a commission basis, and so on.

Tipped employees also have a different minimum wage rate. A “tipped employee” in Virginia refers to an employee who regularly receives tips amounting to over $30 per month. For these types of workers, employers can pay a minimum hourly rate of $2.13. However, when combining hourly wages and tips, their total earnings must meet the Virginia minimum wage of $12.00 per hour. If the combined amount falls short, the employer is required to make up the difference to ensure the employee earns at least $12.00 per hour.

Penalty for Violation

Anyone who knowingly and intentionally breaks the rules stated in the Virginia Minimum Wage Act will face a fine ranging from $10 to $200.

If an employer violates the minimum wage regulations, they will also be held responsible for paying the affected employee or employees the amount of unpaid minimum wages. This includes interest at a rate of eight percent per year on the unpaid wages owed to the employee. 

The interest is calculated from the date the wages were originally due to the employee. In addition to this judgment, the court may require the employer to cover the reasonable attorney’s fees incurred by the employee or employees involved in the case.

FLSA Overtime Laws

Virginia Governor Glenn Youngkin signed HB 1173 (SB 631) into law on April 11, 2022. The legislation aimed to align Virginia’s overtime obligations and exemptions with the federal Fair Labor Standards Act (FLSA). These changes came into effect on July 1, 2022.

Non-exempt employees under FLSA must be paid overtime for hours worked beyond 40 in a workweek at a rate of at least one and a half times their regular pay. The FLSA does not set a maximum limit on the weekly work hours for employees aged 16 and older. And overtime pay is not mandatory for work on weekends, holidays, or regular rest days unless overtime hours are worked on those days.

Some exceptions to the FLSA overtime rate are as follows:

  • White-collar workers earning at least $684 per week
  • Farm workers
  • Volunteers working for educational, nonprofit, or charitable organizations
  • Caddies at golf courses
  • Taxicab drivers
  • Minors employed by their guardians/parents
  • Individuals confined in correctional and penal facilities
  • Summer camp workers

Learn more about Virginia Overtime Laws in our detailed guide.

Penalty for Violation

Employers who purposely or repeatedly break FLSA overtime rules may have to pay civil penalties of up to $1,000 for each violation. They may also have to pay the employee back for the overtime wages they’re entitled to along with other remedies as deemed necessary by the court.

Family Medical Leave Act (FMLA)

Virginia follows the FMLA, which grants eligible employees the right to take up to 12 weeks of unpaid leave per year for personal serious health conditions or that of a family member. This law also allows employees to take up to 26 weeks of unpaid leave to care for a covered servicemember with a serious injury or illness. It’s important to note that this only applies if the employee is the spouse, son, daughter, parent, or next of kin of the service member.

To be eligible for FMLA, employees must have worked for at least a year and completed 1,250 work hours in a 12-month period.

Penalty for Violation

The Wage and Hour Division is responsible for enforcing the FMLA for employees in different sectors, such as private companies and government agencies. If someone files a complaint, it will be investigated, and if violations are discovered, the U.S. Department of Labor can take legal action to ensure compliance.

Allegations should be made within two years of the violation. If a case is successful, the court may order employers to provide FMLA leave and award monetary damages to cover attorney fees and court costs.

Virginia Human Rights Act (VHRA)

The Virginia Human Rights Act, found in Chapter 39 of the Virginia Code, prohibits employers and labor organizations from discriminating against individuals based on their sex. This law applies to employers with six or more employees. On the other hand, Title VII of the Civil Rights Act applies to employers with 15 or more employees.

VHRA specifically addresses employment discrimination based on factors including race, color, religion, sex, national origin, childbirth or related medical conditions, age, marital status, and disability. This means that employers cannot make employment decisions such as hiring, firing, promotions, pay, or any other terms and conditions of employment based on these protected characteristics.

Penalty for Violation

If the Attorney General has a valid reason to believe that an individual or a group of people is consistently opposing the full rights granted by VHRA, the Attorney General can initiate a lawsuit in the relevant circuit court to seek the appropriate remedies.

In a civil action, the court has the power to:

  • Issue orders, such as injunctions or restraining orders, to stop the person responsible for violating this law from continuing their actions and ensure that the rights granted by this law are fully protected.
  • Impose civil penalties on the defendant. The penalty for a first violation cannot exceed $50,000, and for subsequent violations, it cannot exceed $100,000. These penalties are paid to the Literary Fund.
  • Grant reasonable attorney fees and costs to the plaintiff who prevails in the case.

Virginia Occupational Safety and Health (VOSH) Law

The Virginia Occupational Safety and Health (VOSH) Program is part of the Virginia Department of Labor and Industry (DOLI), overseen by the Commissioner. According to VOSH, it shall be the duty of every employer to provide a safe working environment free from recognized hazards that can cause death or serious physical harm to their employees.

VOSH applies to most private sector workplaces in the state, except for certain categories:

  • Maritime employment, including shipyards and marine terminals
  • Contract workers in United States Postal Service (USPS) mail operations
  • Employment at federal military facilities and other federal enclaves
  • Employment at the U.S. Department of Energy’s Southeastern Power Administration Kerr-Philpott System
  • Working conditions of aircraft cabin crew members

If the State Plan cannot effectively enforce regulations in a particular hazard, industry, area, operation, or facility, federal OSHA takes over enforcement. Federal OSHA is also responsible for enforcing the anti-retaliation provision of the Occupational Safety and Health Act of 1970.

Penalty for Violation

Serious violations of VOSHA can result in mandatory penalties of up to $14,270 per violation, while other violations can lead to optional penalties of the same amount. If violations are not corrected within the given time, penalties of up to $14,270 per day may be proposed.

Employers who willfully or repeatedly violate the law may face penalties of up to $142,691 per violation. The law also includes criminal penalties, with fines up to $70,000 and imprisonment of up to six months for willful violations resulting in employee death. Subsequent convictions double these maximum penalties.

Recordkeeping Laws

In general, Virginia employers must maintain records of their employees for at least three years. There are also additional recordkeeping laws that apply to specific situations.

For example, seniority and merit systems must be maintained for two years, job-related injuries and illnesses under OSHA for five years, benefit plan descriptions and reports for six years, and dangerous instances under OSHA for 30 years. 

These records should include essential employee information like:

  • Name
  • Social Security Number
  • Occupation
  • Date of birth
  • Regular hourly rate
  • Payment basis
  • Work start and end times
  • Leaves, and so on
Penalty for Violation

The penalties for violating recordkeeping laws can vary depending on the specific offense and the circumstances involved. Generally, penalties can include fines, potential imprisonment, or both.

As for OSHA recordkeeping regulations, if the employer doesn’t give requested copies of records to employees, former employees, representatives, or authorized representatives by the next business day, they may be cited for violating the law. The penalty is typically $1,000 for each form that was not provided.

Whistleblower Protection Laws

Whistleblower protection laws under Section 2.2-3011 of the Code of Virginia, prohibit employers from discharging, threatening, discriminating against, or retaliating against whistleblowers. Additionally, employers cannot retaliate against whistleblowers who are requested or subpoenaed by authorities to participate in investigations, hearings, inquiries, or court actions.

To be protected, whistleblowers must act in good faith and have a reasonable belief in the accuracy of the disclosed information. Disclosures that are reckless, known, or should have been known to be false, confidential by law, or malicious are not considered protected reports.

Penalty for Violation

Whistleblowers have the option to file a civil action in the circuit court where they work if their rights under this law are violated. If the court determines that the violation was intentional, it can impose a civil penalty ranging from $500 to $2,500 on the employer involved.

The court can also order appropriate remedies, such as reinstatement to the same or equivalent position, back pay, restoration of benefits and seniority rights, or a combination of these. Whistleblowers may also be entitled to recover reasonable attorney fees and costs.

Child Labor Laws

Child labor laws in Virginia aim to protect minors by establishing restrictions related to work hours, nightwork, and certain occupations.

In Virginia, there are two main categories for minors: those under 16 and those who are 16 or 17.

Minors under 16 need a Work Permit and/or an Age Certification document. During non-school periods, they can work up to 8 hours per day, 40 hours per week, and a maximum of 6 days per week. When school is in session, the limit is 3 hours per school day and 18 hours per school week. They also cannot work between 7 pm and 7 am during school days but can work until 9 pm when school is not in session.

Minors aged 16 and 17, on the other hand, do not have a maximum limit on working hours as long as they comply with compulsory school attendance laws. Night work restrictions only apply to minors under 16, with a prohibition on working between 7 pm and 7 am during school days, while those 16 or 17 face no restrictions on nightwork.

All minors are prohibited from working in hazardous jobs such as:

  • Manufacturing or storing explosives
  • Logging and Sawmilling Products
  • Wrecking, Demolition, Shipbreaking Ionizing Radiation
  • Excavation
  • Fire Fighting
  • Mining
  • Serving Alcoholic Beverages
  • Slaughtering, Meat-Packing, and so on
Penalty for Violation

Anyone who employs, hires, or allows a child to work in violation of Virginia Child Labor Laws, may face a civil penalty. The penalty can be up to $10,000 for each violation that leads to a child being seriously injured or dying while working and up to $1,000 for other violations. When deciding the penalty amount, factors such as the size of the business and the seriousness of the violation will be taken into account.

How You Can Avoid Violating Virginia Labor Laws

Steering clear of the penalties for breaking Virginia labor laws requires a proactive and diligent approach. By following these tips, you can ensure compliance and maintain a positive working environment for your employees:

Tip #1 Get to know the rules

Take the time to understand the labor laws that apply to your business in Virginia. It’s like getting to know the rules of the game so you can play fair. Check out the regulations on minimum wage, overtime, breaks, safety, and more. Being aware of these laws is the first step toward compliance.

Tip #2 Establish clear company policies

Develop and implement comprehensive employment policies that align with Virginia labor laws. These policies should cover areas such as anti-discrimination, harassment prevention, employee conduct, leave entitlements, and any other relevant workplace regulations. Make sure to communicate these policies to all employees and ensure they have easy access to the information.

Tip #3 Classify your employees correctly

This one’s super important! Misclassifying employees can land you in hot water. Be crystal clear about whether someone is an employee or an independent contractor. Different laws apply to each category, so you want to get it right from the start. If you’re not sure, don’t hesitate to seek legal advice.

Tip #4 Maintain accurate records

Good recordkeeping is like the backbone of compliance. Make sure you keep track of employees’ attendance, work hours, wages, overtime (if applicable), and any leaves taken. To make things easier, try using attendance and time tracking software. These tools can automate the entire process, accurately capturing the time employees clock in and out, breaks taken, and any overtime worked. This eliminates the risk of human error and ensures precise records.

Accurate recordkeeping not only helps you comply with labor laws but also helps you resolve any potential disputes in the future. Plus, it makes things easier during tax season!

Tip #5 Stay updated and seek guidance

Labor laws can change, and staying up-to-date is crucial. Subscribing to relevant newsletters or following legal updates can help you stay informed about any modifications to Virginia labor laws. And remember, when in doubt, don’t hesitate to ask for guidance from legal experts or professional organizations. It’s better to be safe than sorry!

Important Cautionary Note

The penalties for breaking Virginia labor laws mentioned in this article are potential consequences under the FLSA and related statutes. However, actual penalties depend on the violation severity and the decision of the court or relevant authorities. The information provided in this article is intended to be informative but should not be considered legal advice.

Laws and regulations can change, so it’s advisable to consult employment attorneys or consultants for current and personalized guidance in your circumstances and jurisdiction. Learn more about Virginia Labor Laws through our detailed guide.