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2020 SESSION
20103105DBe 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. Definitions; determining wage of tipped employee.
A. As used in this article:
"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 organization is on a voluntary
basis;
4. Caddies on golf courses;
5. Traveling salesmen or outside salesmen working on a commission basis; taxicab drivers and operators;
6. Any person under the age of 18 in the employ of his father, mother parent 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 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. Any person whose employment is covered by the Fair Labor Standards Act of 1938, as amended;
12. Any person whose earning capacity is impaired by physical deficiency, mental illness, or intellectual disability;
13. Students participating in a bona fide educational program;
14. Any person employed by an
employer who that does not have four or
more persons employed at any one time;, provided that husbands, wives the spouse, sons, daughters children, and parents of the an
individual employer shall not be counted in determining the
number of persons employed;
15. 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;
16. 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;
17. 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; or
18. Any person who works as a babysitter for fewer than 10 hours per week.
"Employer" includes any individual, partnership,
association, corporation, or business
trust, or any person or groups group
of persons acting directly or indirectly in the interest of an employer in
relation to an employee.
"Tipped employee" means an employee engaged in an occupation in which the employee customarily receives more than $30 a month in tips.
"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, wages may include. "Wages" includes
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.
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 (i)
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, in which such case, the amount paid such employee
by his employer shall be deemed to have been increased by such lesser amount, and (ii) when a tipped
employee regularly performs services in the
course of his employment for which there is no
reasonable expectation that the employee will receive
tips, the amount paid such employee by his
employer for times that he performs such services shall be at
a rate not less than the minimum wage specified in § 40.1-28.10.