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2019 SESSION
19104912DBe it enacted by the General Assembly of Virginia:
1. That § 40.1-28.9 of the Code of Virginia is amended and reenacted as follows:
§ 40.1-28.9. Definition of terms.
A. As used in this article:
A. "Employer" includes any individual,
partnership, association, corporation, business trust, or any person or groups
of persons acting directly or indirectly in the interest of an employer in
relation to an employee;
B. "Employee" includes any individual
employed by an employer, except the following:
1. Any person employed as a farm laborer or farm employee;
2. Any person employed in domestic service or in or about a private home or in an eleemosynary institution primarily supported by public funds;
3. Any person engaged in the activities of an educational, charitable, religious, or nonprofit organization where the relationship of employer-employee does not, in fact, exist, or where the services rendered to such organizations are on a voluntary basis;
4. Newsboys, shoe-shine boys, caddies Caddies on
golf courses, babysitters, ushers, doormen, concession attendants and
cashiers in theaters;
5. Traveling salesmen or outside salesmen working on a
commission basis;, taxicab drivers, and taxicab
operators;
6. Any person under the age of 18 in the employ of his father, mother, or legal guardian;
7. Any person confined in any penal or corrective institution
of the State Commonwealth or any of its political subdivisions or
admitted to a state hospital or training center operated by the Department of
Behavioral Health and Developmental Services;
8. Any person employed by a boys' and/or girls' summer
camp for boys, girls, or both boys and girls;
9. Any person under the age of 16, regardless of by whom employed;
10. Any person who normally works and is paid based on the
amount of work done;
11. [Repealed.] Babysitters who are not employed
more than 10 hours per week;
12. 11. Any person whose employment is covered
by the Fair Labor Standards Act of 1938 as amended;
13. 12. Any person whose earning capacity is
impaired by physical deficiency, mental illness, or intellectual disability;
14. 13. Students participating in a bona fide
educational program;
15. Any person employed by an employer who does not have
four or more persons employed at any one time; provided that husbands, wives,
sons, daughters and parents of the employer shall not be counted in determining
the number of persons employed;
16. 14. Any person who is less than 18 years of
age and who is currently enrolled on a full-time basis in any secondary school,
institution of higher education, or trade school, provided that
the person is not employed more than 20 hours per week;
16A. 15. Any person of any age who is currently
enrolled on a full-time basis in any secondary school, institution of higher
education, or trade school and is in a work-study program or its
equivalent at the institution at which he or she is enrolled as a
student; or
17. 16. Any person who is less than 18 years of
age and who is under the jurisdiction and direction of a juvenile and domestic
relations district court.
C. "Employer" includes any individual,
partnership, association, corporation, or business trust or any person or
groups of persons acting directly or indirectly in the interest of an employer
in relation to an employee.
"Wages" means legal tender of the United States or
checks or drafts on banks negotiable into cash on demand or upon acceptance at
full value;, provided, that wages may include the
reasonable cost to the employer of furnishing meals and for lodging to an
employee, if such board or lodging is customarily furnished by the employer,
and used by the employee.
D. B. In determining the wage of a tipped
employee, the amount paid such employee by his employer shall be deemed to be
increased on account of tips by an amount determined by the employer, except in
the case of an employee who establishes by clear and convincing evidence that
the actual amount of tips received by him was less than the amount determined
by the employer. In such case, the amount paid such employee by his employer
shall be deemed to have been increased by such lesser amount.