The Virginia Minimum Wage Act, VA Code § 40.1-28.8, et seq. (“VMWA”), sets minimum wage levels for certain categories of Virginia workers that are higher than the federal minimum wage.
The VMWA defines the “employers” it covers broadly, as including:
any individual, partnership, association, corporation, or business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.
Va. Code § 40.1-28.9(A). Under the VMWA, “employer” includes the Commonwealth, any of its agencies, institutions, or political subdivisions, and any public body. Id.
Subject to the exceptions discussed below, VMWA also defines the “employees” it covers broadly, as including “any individual employed by an employer.” Va. Code § 40.1-28.9(A). “Employee” also specifically includes home care providers. Id.
Exceptions from the VMWA
The VMWA carves out many categories of workers that do not qualify as “employees,” and who therefore are not covered by the VMWA’s minimum wage provisions. Under the VMWA, “employees” do not include:
- Any person employed as a farm laborer or farm employee;
- 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 organization are on a voluntary basis;
- Caddies on golf courses;
- Traveling salesmen or outside salesmen working on a commission basis; taxicab drivers and operators;
- Any person under the age of 18 working for his parent or legal guardian;
- Any person confined in any penal or corrective institution of the 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;
- Any person employed by a summer camp for boys, girls, or both boys and girls;
- Any person under the age of 16, regardless of who they work for;
- Any person who is paid pursuant to 29 U.S.C. § 214(c) of the Fair Labor Standards Act (special provisions for certain disabled workers);
- Students participating in a bona fide educational program;
- Any person younger 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;
- 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 is enrolled as a student;
- Any person who works as a babysitter for fewer than 10 hours per week;
- Any person participating as an au pair in the U.S. Department of State’s Exchange Visitor Program governed by 22 C.F.R. § 62.31;
- Any individual employed as a temporary foreign worker as governed by 20 C.F.R. Part 655; and
- Any person who is exempt from the federal minimum wage pursuant to 29 U.S.C. § 213(a)(3) (exempting employees of certain types of amusement or recreational establishments, organized camps, or religious or non-profit educational conference centers).
The VMWA defines “wages” broadly, as
legal tender of the United States or checks or drafts on banks negotiable into cash on demand or upon acceptance at full value. “Wages” includes the reasonable cost to the employer of furnishing meals and lodging to an employee if such board or lodging is customarily furnished by the employer and used by the employee.
Tipped Employee Provision
Under the VMWA, a tipped employee is an employee who customarily and regularly receives tips totaling more than $30 each month from persons other than the employee’s employer. Va. Code § 40.1-28.9(A).
The VMWA has a special provision for calculating the wages of tipped employees. In determining the wages 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.
Va. Code § 40.1-28.9(B). In other words, the employer may take credit towards its minimum wage obligation for the amount of tips the tipped employee receives. However, the VMWA prohibits an employer from classifying an individual as a “tipped employee” if the individual is prohibited by applicable federal or state law or regulation from soliciting tips. Id.
The VMWA provides that “employers” must pay to each of their “employees” – as those terms are defined in the VMWA – certain minimum “wages” – as that term is defined. Beginning on May 1, 2021, the Virginia minimum wage exceeds the federal minimum wage. Under the VMWA, the Virginia minimum wage increases over time, as follows:
|Time Period||Virginia Minimum Wage under VMWA|
|Prior to May 1, 2021||A rate not less than the federal minimum wage.|
|May 1, 2021, until January 1, 2022||A rate not less than the greater of (i) $9.50 per hour or (ii) the federal minimum wage.|
|January 1, 2022, until January 1, 2023||A rate not less than the greater of (i) $11.00 per hour or (ii) the federal minimum wage.|
|January 1, 2023, until January 1, 2025||A rate not less than the greater of (i) $12.00 per hour or (ii) the federal minimum wage.|
|January 1, 2025, until January 1, 2026||A rate not less than the greater of (i) $13.50 per hour or (ii) the federal minimum wage.*|
*Only if reenacted by July 1, 2024.
|January 1, 2026, until January 1, 2027||A rate not less than the greater of (i) $15.00 per hour or (ii) the federal minimum wage.*|
*Only if reenacted by July 1, 2024.
|From and after January 1, 2027||A rate not less than the greater of (i) the adjusted state hourly minimum wage or (ii) the federal minimum wage.|
VA Code § 40.1-28.10(A)-(G). As noted above, the VMWA provisions for January 2025 (13.50 per hour) and 2026 ($15.00 per hour) – subsections E and F of VA Code § 40.1-28.10 – only become effective if they are reenacted by a regular or special session of the General Assembly prior to July 1, 2024. Id.
The VMWA further provides a process and formula for setting the “adjusted state hourly minimum wage” on an annual basis beginning in 2026:
By October 1, 2026, and annually thereafter, the Commissioner shall establish the adjusted state hourly minimum wage that shall be in effect during the 12-month period commencing on the following January 1.
VA Code § 40.1-28.10(H). The adjusted state hourly minimum wage is to be set at the sum of:
(i) the amount of the state hourly minimum wage rate that is in effect on the date such adjustment is made, and
(ii) a percentage of the amount described in clause (i) that is equal to the percentage by which the United States Average Consumer Price Index for all items, all urban consumers (CPI-U), as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or a successor index as calculated by the U.S. Department of Labor, has increased during the most recent calendar year for which such information is available.
VA Code § 40.1-28.10(H). The amount of each annual adjustment may not be less than zero. Id.
The VMWA provides a lesser minimum wage rate for any person enrolled in an established employer on-the-job or other training program for a period not to exceed 90 days which meets standards set by regulations adopted by the Commissioner:
Beginning May 1, 2021, every employer shall pay to each of his employees at a rate not less than the federal minimum wage or 75 percent of the Virginia minimum wage … whichever is greater. For the purposes of this subdivision “employee” means any person or individual who is enrolled in an established employer on-the-job or other training program for a period not to exceed 90 days which meets standards set by regulations adopted by the Commissioner.
Civil Actions and Remedies for Employees
The VMWA contains a remedies provision. It provides that an employer who violates the law’s minimum wage requirements is liable to the affected employee or employees affected for:
- the amount of the unpaid minimum wages, and
- interest at eight percent per year on the unpaid wages, with the interest to be awarded from the date or dates the wages were due.
VA Code § 40.1-28.12. In addition to any judgment awarded to the employee or employees, the court may also require the employer to pay reasonable attorney’s fees incurred by the employee or employees. Id.
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