Virginia Employment Law Update – May 2016

Virginia

DOLI Adopts New Policy To Combat Wage Theft

The Virginia Department of Labor and Industry (DOLI) will implement a new policy starting June 1, 2016 to combat wage theft. The policy is intended to give guidance and direction to the DOLI’s labor and employment law staff in situations where an employer, alleged to have failed to paid wages owed, either refuses to provide the required records in its possession or is unable to provide such records because the employer failed to maintain the records as required by either the Virginia Employment Commission (VEC) or the federal Fair Labor Standards Act (FLSA) laws and regulations.

A summary of the policy is as follows:

  • Upon request, employers must provide to the commissioner all employment records they are otherwise required to keep under state or federal law, including:
    • Employee’s name in full;
    • Regular hourly rate of pay;
    • Hours worked each workday and total hours worked each workweek;
    • Total daily or weekly earnings or wages due for hours worked during the workday or workweek;
    • Total additions to or deductions from wages paid each pay period, including, in individual employee records, the dates, amounts, and nature of the items that make up total additions and deductions;
    • Total wages paid each pay period; and
    • Date of payment and the pay period covered by payment.
  • If the employer refuses to provide the requested records, the commissioner may issue an administrative subpoena and/or other interrogatories to compel the employer to provide the records.
  • The employer’s failure or refusal to answer any of the commissioner’s legal or proper questions under such subpoena or list of interrogatories may be referred to an appropriate Commonwealth attorney for a misdemeanor prosecution, in accordance with Virginia Code § 40.1-10.
  • If convicted, an employer may be fined not less than $25 and not more than $100 and/or imprisoned in jail for not more than 90 days.
  • If it is determined that the employer did not provide the requested records to the commissioner because the employer failed to maintain them, the commissioner may refer the case to the VEC and/or the U.S. Department of Labor for further investigation.
  • If federal or state required records are not provided, there will be a presumption in favor of the party making the allegation, and the burden of overcoming the presumption will rest upon the party failing to provide such records.

Read the Policy Memorandum