Compliance Watch:
What are my overtime rights in Virginia?

June 24th 2024

In Virginia, both federal and state regulations play a significant role in determining an employee’s entitlement to extra compensation for the hours worked beyond the standard 40-hour workweek.

The Fair Labor Standards Act (FLSA) primarily governs the overtime laws in Virginia, which sets the foundational standards for overtime pay across the United States. However, Virginia has implemented its laws to expand the federal regulations. With this, employees in Virginia should be aware of their overtime rights, including their classification, and understand the criteria that determine their eligibility.

This article explores the key aspects of overtime rights in Virginia, including eligibility criteria, calculation of overtime pay, and the legal avenues available for addressing any violations.

This Article Covers

Understanding Overtime in Virginia
Common Questions About Overtime in Virginia
Legal Working Hours in Virginia
Overtime Eligibility in Virginia
    Overtime Payment Calculations in Virginia
      Receiving Overtime Payment in Virginia
      Violations of Overtime Law in Virginia

      Understanding Overtime in Virginia

      Is overtime pay mandatory in Virginia?

      Yes, overtime pay is mandatory in Virginia for most non-exempt employees, aligning with both federal and state laws designed to ensure fair compensation for extra hours worked. The FLSA requires employers to pay employees overtime compensation at a rate of one and a half times their regular rate of pay for all hours worked over 40 in a workweek. However, not all employees are entitled to overtime pay under the FLSA. Employees classified as “exempt” are not eligible for overtime pay. Non-exempt employees are eligible for overtime pay.

      When do I qualify for overtime pay in Virginia?

      To qualify for overtime pay in Virginia, employees must meet certain criteria based on both federal and state laws. You must be a non-exempt employee and work more than 40 hours in a workweek. Non-exempt employees typically include hourly workers and some salaried employees whose job duties do not meet the criteria for exemption.

      How much is overtime pay in Virginia?

      In Virginia, overtime pay is set at one and a half times (1.5x) the employee’s regular rate of pay for any hours worked over 40 in a workweek. If an employee earns $12 per hour, their overtime rate would be $18 per hour.

      Which laws govern overtime in Virginia?

      Both federal and state laws govern overtime in Virginia. The primary laws that regulate overtime pay in the state are:

      • Fair Labor Standards Act (FLSA): The FLSA is a federal law that establishes the minimum wage, overtime pay, and youth employment standards affecting employees in the private sector and federal, state, and local governments. Under the FLSA, non-exempt employees must receive overtime pay for hours worked over 40 in a workweek at a rate of not less than one and a half times their regular rate of pay. However, the FLSA also defines certain exemptions, and these employees are not entitled to overtime pay.
      • Virginia Overtime Wage Act (VOWA): Enacted in 2021, VOWA reinforces and supplements the federal FLSA requirements within the state of Virginia. VOWA mandates that employers pay non-exempt employees overtime at one and a half times their regular rate of pay for hours worked over 40 in a workweek, mirroring the FLSA’s requirements. VOWA includes enforcement provisions and allows employees to recover unpaid wages, liquidated damages, and attorney’s fees if their overtime rights are violated.

      Common Questions About Overtime in Virginia

      Do employers have to pay overtime in Virginia?

      Yes, employers are required to pay overtime in Virginia. Both federal and state laws mandate overtime pay for non-exempt employees who work more than 40 hours in a workweek. However, certain employees are exempt from overtime pay requirements. These exemptions include executive, administrative, professional, outside sales, and certain computer employees who meet specific criteria regarding job duties and a salary threshold.

      Can an employee refuse to work overtime in Virginia?

      In Virginia, if an employer requires employees to work overtime, refusing overtime can lead to disciplinary action, including termination, especially in at-will employment. However, valid reasons such as health and safety concerns, disciplinary practices, or specific contractual terms may provide grounds for refusal. Employees should communicate properly with their employers.

      Can I take comp time instead of overtime pay in Virginia?

      Eligibility of compensatory time off (comp time) instead of receiving overtime pay depends on your employment sector (public or private) and specific employer policies. The FLSA does not allow private sector employers to offer comp time instead of overtime pay for non-exempt employees. Non-exempt employees must be paid overtime wages for hours worked over 40 in a workweek.

      Under the FLSA, public sector employees are allowed to receive comp time instead of overtime pay. Comp time must be provided at a rate of one and a half hours for each hour of overtime worked.

      Can I get overtime pay in Virginia without employer approval?

      In Virginia, as under federal law, the entitlement to overtime pay is not contingent on employer approval of overtime hours worked. Non-exempt employees must be paid overtime regardless of whether the employer has explicitly approved the overtime hours.

      Although employers may have policies requiring employees to obtain approval before working overtime, this does not negate the employer’s obligation to pay for the overtime hours worked. Employers must still pay for those hours but may address the policy violation through disciplinary measures.

      Does Virginia have double-time pay?

      Virginia does not have specific laws requiring double-time pay. The FLSA and VOWA mandate that non-exempt employees must be paid one and a half (1.5) of their regular pay rate for overtime work.

      However, some employers may choose to offer double-time pay as part of their compensation policies or through union arrangements. They may offer double-time pay to incentivize employees to work during less desirable times, such as holidays, weekends, overnight shifts, or during emergency conditions. Employees may check their employment contract or handbook to see if double-time pay is mentioned.

      What is working ‘off-the-clock’ in Virginia?

      Working ‘off-the-clock’ in Virginia is illegal and violates both federal and state labor laws. Off-the-clock work involves employees performing job-related tasks without receiving compensation for their time. This includes any activities performed before clocking in, after clocking out, or during unpaid breaks. Examples of off-the-clock work include answering emails, making phone calls, preparing equipment or workstations, attending meetings, or cleaning up after shifts without logging these activities as work hours.

      Employers are required to pay employees for all hours worked, including any time spent on job-related activities outside of their regular working hours. Employees should be aware of their rights and take appropriate action if they are asked to perform off-the-clock work.

      What are common ways employers avoid paying overtime in Virginia?

      Employers may use various tactics to avoid paying overtime, which can lead to violations of federal and state labor laws. Here are some common ways employers might attempt to circumvent overtime pay requirements in Virginia:

      • Misclassifying employees as exempt: Employers may incorrectly classify non-exempt employees as exempt to avoid paying overtime. Exempt employees in executive, administrative, or professional roles are not entitled to overtime pay under the FLSA and VOWA.
      • Misclassifying employees as independent contractors: Misclassifying employees as independent contractors can also be a tactic to evade overtime obligations, as the same wage and hour laws do not cover independent contractors as employees.
      • Encouraging off-the-clock work: Employers may encourage or require employees to perform work before clocking in, after clocking out, or during unpaid breaks without recording these hours.
      • Refusing to pay unauthorized overtime: Employers may instruct employees not to record overtime hours or refuse to pay for unauthorized overtime, even if the work was performed. Employers are required to compensate employees for all their worked hours.
      • Manipulating time records: Some employers alter time records to reduce the number of recorded hours worked by employees or round down employees’ work hours, reducing total hours worked and avoiding overtime pay.
      • Offering comp time instead of overtime pay: Some employers offer compensatory time off (comp time) instead of paying overtime. While comp time is allowed in certain public sector jobs, it is generally not permissible in the private sector under FLSA.

      Can you work seven days in a row in Virginia?

      No state law in Virginia prohibits working seven days in a row, nor does federal law restrict the number of consecutive days an employee can work. Employers are allowed to schedule employees to work seven or more consecutive days, as long as they comply with federal and state overtime laws.

      The regular workweek for full-time positions typically consists of a five-day, 40-hour per week schedule within seven days. However, if an employee works more than 40 hours in a workweek, they must be compensated with overtime pay, which is one and a half times their regular rate of pay

      How many ten-hour days can you work in a row in Virginia?

      In Virginia, there are no specific state laws limiting the number of consecutive ten-hour days you can work. The FLSA, which governs federal labor standards, also does not restrict the number of consecutive days an employee can work or the number of hours per day, as long as overtime rules are followed. For example, if you work five ten-hour days (50 hours total) in a week, you are entitled to 10 hours of overtime pay at one and a half times your regular rate.

      What are full-time hours in Virginia?

      Full-time salaried employees typically work the equivalent of 40 hours per week. They are expected to work throughout the entire year, which translates to 52 weeks, not including any vacation, holidays, or other leave. While 40 hours per week is standard, some employers may define full-time as 35, 37.5, or 45 hours per week depending on the nature of the job and company policies.

      How many hours straight can you legally work in Virginia?

      There are no specific legal limits on the number of consecutive hours an employee can work in Virginia. However, employers must pay overtime for hours worked over 40 in a workweek and ensure compliance with industry-specific regulations and OSHA standards for worker safety. While the law allows for long work hours, practical and safety considerations often lead employers to set their limits on consecutive work hours to protect employees’ health and well-being.

      Is overtime after eight hours or 40 hours in Virginia?

      Overtime in Virginia is calculated based on hours worked over 40 in a workweek, not on a daily basis. This is consistent with the FLSA and VOWA, which mandate that non-exempt employees must be paid overtime rate for all hours worked over 40 in a single workweek.

      Does working on the weekend qualify for overtime pay in Virginia?

      In Virginia, working on the weekend does not inherently qualify an employee for overtime pay. Overtime eligibility is based on exceeding 40 hours in a workweek. Employers must compensate non-exempt employees at one and a half times their regular rate for any hours worked over 40 in a week, regardless of whether those hours include weekends. Employees should consult their company policies to understand any additional compensation practices for weekend work.

      How many hours off between shifts is required in Virginia?

      No state or federal law mandates a specific number of hours off between shifts for adult workers. Employers are generally free to set their own policies regarding rest periods, though they should consider the impact on employee health and productivity.  However, Virginia does have regulations concerning work hours for minors under the age of 18, which include restrictions on the number of hours they can work and mandated rest periods between shifts. For example, minors are often required to have a certain number of hours off between the end of one shift and the start of the next to ensure their health and education are not adversely affected.

      What does ‘hours worked’ include in Virginia?

      The concept of ‘hours worked’ in Virginia is governed by the FLSA. Hours worked in Virginia include:

      • Actual hours worked: All time during which an employee is required to be on duty or at a prescribed workplace.
      • On-call time: Time spent on-call is considered hours worked if the employee is required to remain on the employer’s premises or so close that they cannot use the time effectively for their own purposes.
      • Training and meetings: Time spent in training sessions, meetings, lectures, or other activities related to the job must be counted as hours worked if attendance is mandatory and the event is directly related to the employee’s job.
      • Travel time: Travel during normal work hours as part of an employee’s principal activity (such as traveling between job sites) is considered hours worked.
      • Rest and meal periods: Short rest breaks (typically 20 minutes or less) are generally considered hours worked. Bona fide meal periods (typically 30 minutes or more) are not considered hours worked if the employee is completely relieved from duty during the meal period.
      • Preparatory and concluding activities: Time spent on activities that are integral and indispensable to the principal activities of the job, such as setting up equipment or cleaning up after work, is considered hours worked.
      • Waiting time: If an employee is engaged to wait (e.g., a machine operator waiting for a machine to be repaired), this time is considered hours worked. If an employee is waiting to be engaged (e.g., an employee who arrives early and waits for their shift to start), this time is not counted as hours worked.

      What is the maximum number of hours a salaried employee can work in Virginia? 

      Virginia has no specific regulation regarding the maximum number of hours that a salaried employee can work per week. However, employers must comply with federal overtime laws and ensure that salaried employees’ work hours align with legal requirements, industry standards, and employment agreements. Salaried employees should be aware of their exempt or non-exempt status under the FLSA and understand their rights regarding overtime pay and work hours.

      Learn more about Your Rights as a Salaried Employee in Virginia.

      What is the maximum number of hours an hourly employee can work in Virginia?

      In Virginia, there is no specific state law that sets a maximum limit on the number of hours an hourly employee can work per week. However, employers must comply with federal regulations under the FLSA regarding overtime pay for hours worked over 40 in a workweek.

      Learn more about Your Rights as an Hourly Employee in Virginia.

      Overtime Eligibility in Virginia

      Who is eligible for overtime pay in Virginia?

      Most employees classified as non-exempt are entitled to overtime pay in Virginia. Typically, hourly employees are non-exempt and eligible for overtime. Some salaried employees may also be non-exempt if their job duties do not meet the criteria for exempt status and if they earn below a certain salary threshold.

      Who is exempt from overtime pay in Virginia?

      In Virginia, certain employees are exempt from overtime pay requirements under both federal and state laws.

      • Executive exemption: Employees whose primary duties involve managing the enterprise or a recognized department or subdivision.
      • Administrative exemption: Employees whose primary duties involve office or non-manual work directly related to management policies or general business operations.
      • Professional exemption: Employees whose primary duties involve computer systems analysis, programming, or software engineering. These employees must meet certain salary requirements to qualify for exemption.
      • Computer employee exemption: Employees who work as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field. These employees must be compensated on an hourly basis of at least $27.63 an hour.
      • Outside sales exemption: Employees whose primary duties involve making sales or obtaining orders or contracts for services or facilities.

      Furthermore, these exempt employees must be paid at least the minimum salary threshold established by federal and state law to qualify for exemption. As of 2024, the federal threshold is $684 per week ($35,568 annually).

      Apart from the exemptions provided by the federal government, Virginia state also has specific restrictions on overtime hours for certain occupations:

      • Farm workers
      • Volunteers working for educational, nonprofit, religious, or charitable organizations
      • Caddies at golf courses
      • Taxicab drivers
      • Minors employed by their guardians/parents
      • Minor employees under 16 years of age
      • Individuals confined in correctional and penal facilities
      • Summer camp workers
      • Student workers working for genuine educational programs, trade schools, or secondary institutions of education for a maximum of 20 hours a week
      • People enrolled in educational institutions provided that they are employed by the said institution
      • Babysitters working for a maximum of 10 hours a week
      • Au pairs participating in the Exchange Visitor Program of the US Department of State
      • Temporary foreign workers and salespeople
      • Vehicle parts people and mechanics are primarily involved in selling or servicing automobiles, trucks, and farm implements provided they are employed by non-manufacturing establishments
      • Salespeople primarily involved in selling trailers, boats, and aircraft employed by non-manufacturing establishments.

      Can salaried employees get overtime pay in Virginia?

      Yes, salaried employees can get overtime pay in Virginia if they are classified as non-exempt under the FLSA and VOWA. Non-exempt salaried employees are entitled to overtime pay at 1.5 times their regular rate of pay for hours worked over 40 in a workweek. Exempt salaried employees, on the other hand, are not eligible for overtime pay based on their classification and the job duties they perform.

      Learn more in detail about Virginia Salaried Employees Laws and Virginia Overtime Laws.

      Overtime Payment Calculations in Virginia

      What is my regular rate of pay in Virginia?

      Your regular rate of pay in Virginia is used to calculate overtime pay when you work more than 40 hours in a workweek.

      • Hourly employees’ regular rate of pay is simply their hourly wage. For example, if you are paid $12 per hour, your regular pay rate is $12 per hour.
      • Salaried employees’ regular pay rate is calculated based on their weekly salary divided by the number of hours the salary is intended to compensate. For example, if your weekly salary of $500 is based on a 40-hour workweek, your regular rate of pay would be $12.5 per hour.

      Understanding your regular rate of pay is crucial for ensuring that you receive proper compensation, particularly for overtime work.

      How do you calculate overtime in Virginia?

      Calculating overtime pay in Virginia involves determining the regular rate of pay and applying the appropriate overtime rate for hours worked over 40 in a workweek. If you worked 45 hours in a workweek with a regular rate of pay of $12 per hour:

      • Overtime rate = Regular pay x 1.5 = $12 x 1.5 = $18
      • Overtime pay = Overtime rate x Additional hours worked = $18 x 5 = $90
      • Total weekly pay = Regular pay + Overtime pay = $480 + $90 = $570

      How is overtime taxed in Virginia?

      Overtime pay in Virginia is taxed the same way as regular wages, subject to federal and state income taxes, as well as Social Security and Medicare taxes. The withholding from your paycheck for these taxes will depend on your total earnings and the information you provided on your tax forms.

      Receiving Overtime Payment in Virginia

      How is overtime paid in Virginia?

      In Virginia, overtime pay is typically processed and paid through the same method as regular wages, such as direct deposit, paper checks, or payroll cards. Employers are required to ensure that overtime wages are itemized on pay statements and paid on time according to the regular payroll schedule.

      When do I receive my overtime paycheck in Virginia?

      You should receive your overtime pay on the regular payday for the period in which the overtime was worked. Employers in Virginia are required by law to pay their employees every two weeks regularly and must include overtime wages in the same paycheck as the regular wages of that pay period.

      Violations of Overtime Law in Virginia

      What if my employer refuses to pay me overtime in Virginia?

      If your employer refuses to pay you overtime in Virginia, you can address the situation by raising the issue with your employer professionally. Sometimes, misunderstandings or errors in payroll processing can be resolved through open communication.

      However, if discussions with your employer do not resolve the issue, you can file a wage claim with the Virginia Department of Labor and Industry (DOLI).

      What is the penalty for failing to pay overtime in Virginia?

      Any employer who violates the overtime pay requirements can be held liable for all remedies, damages, or other relief brought on by the employee. Employers who intentionally fail to pay overtime wages may incur a penalty of $1,000 for each instance of non-payment.

      How can I file a wage claim for overtime in Virginia?

      Filing a wage claim for overtime in Virginia involves collecting all relevant documentation related to your employment and hours worked. Obtain a wage claim form from the Virginia Department of Labor and Industry (DOLI). Fill out the form accurately and completely and submit the form to Virginia DOLI.

      Can employers retaliate against employees for making a wage claim in Virginia?

      In Virginia, employers are prohibited from retaliating against employees from making a wage claim. Retaliation occurs when an employer takes adverse action against an employee in response to the employee asserting their rights under wage and hour laws, including filing a wage claim for unpaid overtime. Retaliation can include termination, demotion, reduction in hours or pay, harassment, or any other adverse treatment because the employee filed a wage claim or complained about wage violations.

      Employees who believe their employers have unlawfully retaliated against them can file a retaliation complaint with the appropriate agency, such as the Virginia Department of Labor and Industry (DOLI) or the US Department of Labor’s Wage and Hour Division.

      Learn more about Virginia Labor Laws through our detailed guide.

      Important Cautionary Note

      This content is provided for informational purposes only. While we make every effort to ensure the accuracy of the information presented, we cannot guarantee that it is free of errors or omissions. Users are advised to independently verify any critical information and should not solely rely on the content provided.