The Virginia Gap Pay Act, VA Code § 9.1-700, et seq. (“VGPA”), provides that certain fire protection and law enforcement employees must be paid overtime compensation for time worked in the “gap.” The “gap” refers to the all hours of work between (a) the statutory maximum hours per work period under the Fair Labor Standards Act’s (“FLSA”)special rules for fire protection and law enforcement employees and (b) the hours for which an employee receives his salary, or if paid on an hourly basis, the hours for which the employee receives hourly compensation.
Federal Statutory Background: The Gap Created by Section 7(k) of the FLSA
The VGPA is a state-law response to an issue created by the federal FLSA’s special work period rules for fire protection and law enforcement employees, located at 29 U.S.C. § 207(k). See also 29 CFR § 553.230. In general, those rules allow fire departments or police departments to establish a work period ranging from 7 to 28 days in which overtime need be paid only after a specified number of hours in each work period. See this prior post for a detailed explanation of those rules and the maximum hours by work period. Paying overtime based on these work periods can create a “gap” of uncompensated working time between the hours covered by the employee’s salary, and the hours the employee has to work to receive overtime compensation under Section 7(k) of the FLSA.
In other words, Section 7(k) can result in law enforcement and fire protection employees working without pay for the period between the hours covered by their salary and the hours at which their department is required to begin paying overtime under federal law.
Virginia Remedy: The Gap Pay Act
To fix this issue, the VGPA provides, generally, that certain fire protection and law enforcement employees must be paid overtime compensation or leave for the “gap,” that is, “for all hours of work between the statutory maximum permitted under 29 U.S.C. § 207(k) and the hours for which an employee receives his salary, or if paid on an hourly basis, the hours for which the employee receives hourly compensation.” Here’s what the key provision of the law says:
A. Employers shall pay fire protection or law-enforcement employees overtime compensation or leave, as under the Fair Labor Standards Act, 29 U.S.C. § 207 (o), at a rate of not less than one and one-half times the employee’s regular rate of pay for all hours of work between the statutory maximum permitted under 29 U.S.C. § 207 (k) and the hours for which an employee receives his salary, or if paid on an hourly basis, the hours for which the employee receives hourly compensation. A fire protection or law-enforcement employee who is paid on an hourly basis shall have paid leave counted as hours of work in an amount no greater than the numbers of hours counted for other fire protection or law-enforcement employees working the same schedule who are paid on a salaried basis in that jurisdiction.
For example, Section 7(k) of the FLSA allows fire departments to establish a 7-day work period and only pay fire protection employees overtime when they work more than 53 hours in a 7-day work period. 29 CFR § 553.230(c). Under the VGPA, if the employee’s salary is intended to cover 40 hours per 7-day period, the fire department is required to pay the employee overtime compensation or leave for the 13 hour “gap” between the 40 hours covered by the employee’s salary and the 53-hour maximum under the FLSA. VA Code § 9.1-701(A).
Paid Leave Counts as Hours Worked
The VGPA also provides that a fire protection or law-enforcement employee who is paid on an hourly basis shall have paid leave counted as hours of work in an amount no greater than the numbers of hours counted for other fire protection or law-enforcement employees working the same schedule who are paid on a salaried basis in that jurisdiction. VA Code § 9.1-701(A). This differs from the general rule under the FLSA, that paid leave does not count as hours worked for purposes of overtime compensation. A similar rule is set out in Section 703(C), discussed below.
Limitation with Respect to Law-Enforcement Employees
Notably, the VGPA’s gap-pay requirement as it pertains to law-enforcement employees only applies to employers of 100 or more law-enforcement employees. VA Code § 9.1-701(C). Other parts of the VGPA as it pertains to law-enforcement employees also only apply to employers of 100 or more law-enforcement employees. See VA Code § 9.1-702, 703, and 704(C). By contrast, the law as it pertains to fire protection employees applies to all political-subdivision employers of fire protection employees except any locality with five or fewer paid firefighters that is exempt from overtime rules by 29 U.S.C. § 207(k). VA Code § 9.1-700.
Word Period Rules
The VGPA further provides that employers may adopt any work period to compute overtime compensation for fire protection or law-enforcement employees between seven and 28 days — provided that the work period is recurring and fixed, and is not changed for purposes of denying overtime compensation to the employees to which they may be entitled under the gap pay provisions. VA Code § 9.1-702.
Hours Worked for Overtime Computation Includes All Hours in Paid Status
The VGPA makes clear that for law enforcement and fire protection employees, all hours that an employee is in a paid status (such as being on paid leave) will count as hours worked for purposes of calculating overtime:
For purposes of computing fire protection or law-enforcement employees’ entitlement to overtime compensation, all hours that an employee works or is in a paid status during his regularly scheduled work hours shall be counted as hours of work.
VA Code § 9.1-703. As noted above, this differs from the FLSA’s default rule that paid leave does not count as hours worked for purposes of overtime compensation. As with other provisions of the VGPA, this provision as it pertains to law-enforcement employees only applies to such employees of an employer of 100 or more law-enforcement employees. VA Code § 9.1-703.
Civil Actions and Remedies for Employees: Double Damages and Attorney Fees
The VGPA contains a strong remedies provision. It provides that an employee whose rights under the VGPA are violated can bring an action to recover double the amount of their unpaid compensation:
In an action brought under this chapter, an employer who violates the provisions of this chapter shall be liable to the fire protection or law-enforcement employee affected in an amount of double the amount of the unpaid compensation due such employee.
VA Code § 9.1-704(A). However, the law provides the employer with an affirmative defense to the doubling of damages. If the employer can prove that the violation was in good faith, the employer is liable only for the amount of the unpaid compensation plus eight-percent annual interest, starting on the date the compensation was due to the employee. VA Code § 9.1-704(A).
The VGPA also provides that when the fire protection or law-enforcement employee prevails in a civil action for a violation of the VGPA, the court must award him or her attorneys’ fees and costs to be paid by the employer. VA Code § 9.1-704(B).
Limitations Period
Similar to the FLSA, the VGPA has a two or three-year lookback period. The law provides that actions brought under the VGPA must be commenced within two years of the date the unpaid compensation was due, or if the violation is willful, within three years of the date the unpaid compensation was due. VA Code § 9.1-705.
Sovereign Immunity for the Commonwealth
Finally, the VGPA preserves the Commonwealth’s sovereign immunity, stating that immunity of the Commonwealth and of any “agency” as defined in § 8.01-195.2 is preserved. VA Code § 9.1-706. The law does, however, apply to local governments like counties and cities. See VA Code § 9.1-700 (defining “employer” generally “as any political subdivision of the Commonwealth, including any county, city, town, authority, or special district that employs fire protection employees” except any locality with five or fewer paid firefighters that is exempt from the FLSA’s Section 7(k) overtime rules).
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