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2013 SESSION
13100819DBe it enacted by the General Assembly of Virginia:
1. That § 40.1-29 of the Code of Virginia is amended and reenacted as follows:
§ 40.1-29. Time and medium of payment; withholding wages; written statement of earnings; recordkeeping; agreement for forfeiture of wages; proceedings to enforce compliance; private right of action; penalties.
A. 1. All employers operating a business shall
establish regular pay periods and rates of pay for employees except executive
personnel. All such employers shall pay salaried employees at least once each
month and employees paid on an hourly rate at least once every two weeks or
twice in each month, except that (i) a student who is currently enrolled in a
work-study program or its equivalent administered by any secondary school,
institution of higher education or trade school, and (ii) employees whose
weekly wages total more than 150 percent of the average weekly wage of the
Commonwealth as defined in § 65.2-500, upon agreement by each affected
employee, may be paid once each month if the institution or employer so
chooses. Upon termination of employment an employee shall be paid all wages or
salaries due him for work performed prior thereto; such payment shall be made
on or before the date on which he would have been paid for such work had his
employment not been terminated.
2. B. Any such employer who knowingly fails to
make payment of wages in accordance with this section shall be subject to a
civil penalty not to exceed $1,000 for each violation. The Commissioner shall
notify any employer who he alleges has violated any provision of this section
by certified mail. Such notice shall contain a description of the alleged
violation. Within 15 days of receipt of notice of the alleged violation, the
employer may request an informal conference regarding such violation with the
Commissioner. In determining the amount of any penalty to be imposed, the
Commissioner shall consider the size of the business of the employer charged
and the gravity of the violation. The decision of the Commissioner shall be
final.
B. C. Payment of wages or salaries shall be (i)
in lawful money of the United States, (ii) by check payable at face value upon
demand in lawful money of the United States, (iii) by electronic automated fund
transfer in lawful money of the United States into an account in the name of
the employee at a financial institution designated by the employee, or (iv) by
credit to a prepaid debit card or card account from which the employee is able
to withdraw or transfer funds with full written disclosure by the employer of
any applicable fees and affirmative consent thereto by the employee. However,
an employer that elects not to pay wages or salaries in accordance with clause
(i) or (ii) to an employee who is hired after January 1, 2010, shall be
permitted to pay wages or salaries by credit to a prepaid debit card or card
account in accordance with clause (iv), even though such employee has not
affirmatively consented thereto, if the employee fails to designate an account
at a financial institution in accordance with clause (iii) and the employer
arranges for such card or card account to be issued through a network system
through which the employee shall have the ability to make at least one free
withdrawal or transfer per pay period, which withdrawal may be for any sum in
such card or card account as the employee may elect, using such card or card
account at financial institutions participating in such network system.
C. D. No employer shall withhold any part of the
wages or salaries of any employee except for payroll, wage or withholding taxes
or in accordance with law, without the written and signed authorization of the
employee. An employer, upon request of his employee, shall furnish the latter a
written statement of the gross wages earned by the employee during any pay
period and the amount and purpose of any deductions therefrom.
D. E. No employer shall require any employee,
except executive personnel, to sign any contract or agreement which provides
for the forfeiture of the employee's wages for time worked as a condition of
employment or the continuance therein, except as otherwise provided by law.
E. F. All employers shall maintain and preserve, for
such period as the Commissioner may prescribe by regulation, payroll or other
records containing the following information and data with respect to each
employee:
1. Name in full;
2. Regular hourly rate of pay;
3. Hours worked each workday and total hours worked each workweek. For purposes of this subsection, "workday" means any fixed period of 24 consecutive hours, and "workweek" means any fixed and regularly recurring period of seven consecutive workdays;
4. Total daily or weekly earnings or wages due for hours worked during the workday or workweek;
5. 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 the total additions and deductions;
6. Total wages paid each pay period; and
7. Date of payment and the pay period covered by payment.
G. If an employer fails to accurately maintain records containing the information and data with respect to an employee as required under subsection F, the employee, in any proceeding to collect any wages earned and not paid to him or other moneys unlawfully withheld from him by his employer, shall satisfy his burden of establishing that he is entitled to such wages or other moneys if the employee (i) proves that he performed work for which he was improperly compensated and (ii) produces sufficient evidence regarding the amount of his rate of pay and the extent of the work he performed to permit the Commissioner or court, as applicable, to reasonably infer the amount of wages or other moneys properly owed to him. Such evidence may be made through the employee's sworn testimony regarding his recollection of hours worked. If the employee produces such evidence, the burden of proof shall then shift to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference drawn from the employee's evidence. If the employer cannot produce such evidence, the Commissioner or court, as applicable, may then find for the employee even if the amount of such wages or other moneys claimed is inexact or an approximation.
H. An employer who willfully and with intent to defraud fails or refuses to pay wages in accordance with this section is guilty of a Class 1 misdemeanor if the value of the wages earned and not paid by the employer is less than $10,000 and is guilty of a Class 6 felony if the value of the wages earned and not paid is $10,000 or more or, regardless of the value of the wages earned and not paid, if the conviction is a second or subsequent conviction under this section. For purposes of this section, the determination as to the "value of the wages earned" shall be made by combining all wages the employer failed or refused to pay pursuant to this section.
F. I. The Commissioner may require a written
complaint of the violation of this section and, with the written and signed
consent of an employee, may institute proceedings on behalf of an employee to
enforce compliance with this section, and to collect any moneys unlawfully
withheld from such employee which shall be paid to the employee entitled
thereto. In addition, following the issuance of a final order by the
Commissioner or a court, the Commissioner may engage private counsel, approved
by the Attorney General, to collect any moneys owed to the employee or the
Commonwealth. Upon entry of a final order of the Commissioner, or upon entry of
a judgment, against the employer, the Commissioner or the court shall assess
attorney's attorney fees of one-third of the amount set forth in the
final order or judgment.
G. J. In addition to being subject to any other
penalty provided by the provisions of this section, any and without
regard to exhaustion of any alternative administrative remedies provided in
this section, if an employer who fails to make payment of wages in
accordance with subsection A shall be liable for this section, an
employee may bring an action against the employer in a court of competent
jurisdiction to recover the payment of all unpaid wages due, plus.
If a court finds that an employer withheld the wages of an employee in
violation of this section, the court shall award the employee an amount
equivalent to the unpaid wages and prejudgment interest at an annual rate
of eight percent accruing from the date the wages were due, plus reasonable
attorney fees and other costs. Furthermore, in the absence of a showing
of good faith on the part of the employer, the court shall award the employee
an amount equivalent to three times the amount of unpaid wages. Any such action
for unpaid wages shall commence within two years after the action accrued,
except that in the case of a willful violation the action shall commence within
three years after the action accrued.
H. K. Civil penalties owed under this section
shall be paid to the Commissioner for deposit into the general fund of the
State Treasurer. The Commissioner shall prescribe procedures for the payment of
proposed assessments of penalties which are not contested by employers. Such
procedures shall include provisions for an employer to consent to abatement of
the alleged violation and pay a proposed penalty or a negotiated sum in lieu of
such penalty without admission of any civil liability arising from such alleged
violation.
L. Final orders of the Commissioner, the general district courts or the circuit courts may be recorded, enforced and satisfied as orders or decrees of a circuit court upon certification of such orders by the Commissioner or the court as appropriate.
[ 2. That the provisions of this act shall not become effective if an appropriation of general funds restoring funding for six wage investigator positions at the Department of Labor and Industry is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law. ]