The Virginia Equal Pay Act (“VEPA”), VA Code § 40.1-28.6, prohibits Virginia employers from paying employees less than employees of the opposite sex for doing the same work. The VEPA is similar to the federal Equal Pay Act and contains similar exceptions and remedies, but only covers employers not covered by the Equal Pay Act.
The VEPA provides, as a general rule, that employers cannot discriminate between employees on the basis of sex by paying employees of one sex less than employees of the opposite sex for doing equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions:
No employer having employees shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.
As noted above, however, the VEPA does provide some exceptions. These are similar to the exceptions under the federal Equal Pay Act. A covered employer is permitted to pay employees of one sex less that it pays to employees of the opposite sex for doing the same work, only if the difference in payment is due to any of the following:
(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
Additionally, the VEPA provides that it only applies to employers not covered by the federal Equal Pay Act, which is part of the minimum wage provisions of the federal Fair Labor Standards Act:
This section shall not apply to employers covered by the Fair Labor Standards Act of 1938 as amended.
Remedies and Private Right of Action
The VEPA provides a civil right of action for any employee harmed by a violation of its provisions. Under these provisions, an employee may bring an action in court to recover two times the amount of the unlawful underpayment:
For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this section shall be deemed to be unpaid wages or unpaid overtime compensation and the employee whose wages have been wrongfully withheld in violation of this section shall have a right of action therefor to recover damages to the extent of two times the amount of wages so withheld.
The VEPA provides a two-year statute of limitations for civil actions:
Every action under this section shall be brought within two years next after the right to bring the same shall have accrued.
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