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2018 SESSION
18104318DPatrons-- Krizek, Boysko, Torian, Adams, D.M., Ayala, Bagby, Carroll Foy, Convirs-Fowler, Gooditis, Guzman, Hope, Hurst, Levine, McQuinn, Plum, Rodman, Simon, Tyler and Ward
Be it enacted by the General Assembly of Virginia:
1. That §§ 40.1-2.1 and 40.1-28.9 of the Code of Virginia are amended and reenacted as follows:
§ 40.1-2.1. Application of title to Commonwealth and its agencies, etc.; safety and health program for public employees.
The provisions of this title, other than Article 1.1 (§ 40.1-28.8 et seq.) of Chapter 3, and any rules and regulations promulgated pursuant thereto shall not apply to the Commonwealth or any of its agencies, institutions, or political subdivisions, or any public body, unless, and to the extent that, coverage is extended by specific regulation of the Commissioner or the Board. The Commissioner is authorized to establish and maintain an effective and comprehensive occupational safety and health program applicable to employees of the Commonwealth, its agencies, institutions, political subdivisions, or any public body. Such program shall be subject to any State plan submitted to the federal government for State enforcement of the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596), or any other regulation promulgated under Title 40.1. The Commissioner or the Board shall establish procedures and adopt regulations for enforcing the program that shall include provisions for (i) the issuance of proposed penalties; (ii) the payment of such penalties or a negotiated sum in lieu of such penalties; (iii) the deposit of such payments into the general fund of the state treasury; (iv) fair hearings, including judicial review; and (v) other sanctions to be applied for violations.
§ 40.1-28.9. Definitions; wages of tipped employees.
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. 2. 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 on golf courses, babysitters, ushers, doormen,
concession attendants and cashiers in theaters 3. Babysitters;
5. 4. Traveling
salesmen or outside salesmen working on a commission basis; taxicab
drivers and operators;
6. 5. Any
person under the age of 18 in the employ of his father, mother or legal
guardian;
7. 6. Any
person confined in any penal or corrective institution of the State 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. 7. Any
person employed by a boys' and/or girls'
summer camp for boys, girls, or both;
9. 8. Any
person under the age of 16, regardless of by whom employed;
10. 9. Any
person who normally works and is paid based on the amount of work done;
11.
[Repealed.]
12. Any person whose
employment is covered by the Fair Labor Standards Act of 1938 as amended;
13. 10. Any person whose earning capacity is impaired by physical
deficiency, mental illness, or intellectual disability, only to the extent that such
person performed services for an
employer prior to July 1, 2020;
14. 11. Students
participating in a bona fide educational program;
15. 12. 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. 13. 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. 14. 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 the person is enrolled as a
student; or
17. 15. 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. "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 paid to any 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, the
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 excluded from such determination.