Other Virginia Claims Often Brought With A Misclassification of Independent Contractor Claim
Earlier this year I authored an article entitled, “Virginia’s Employee Misclassification Law.”
As I noted in that article, the Virginia General Assembly passed legislation in 2020 to deter companies from misclassifying their employees and to penalize those employers for having misclassified their workers. This legislation was in response to a study in Virginia that revealed approximately 214,000 Virginia workers that were misclassified as independent contractors.
Independent contractors that have been misclassified often have the following additional claims:
1. Claim For Failure to Pay Overtime
The Fair Labor Standards Act (“FLSA”) is a federal statute enacted to ensure that employees are guaranteed minimum wage and overtime pay. Generally, overtime pay is required when an employee works in excess of 40 hours in a week. The Commonwealth of Virginia has incorporated the FLSA into the Virginia Code through the Virginia Overtime Wage Act (“VOWA”). Both the FLSA and the VOWA provide damages that amount to what is essentially two times the employee’s unpaid overtime wages. Both the federal and state statute also provide that the employee is entitled to recover reasonable attorney’s fees and costs.
2. Claim For Failure to Pay Minimum Wage
There is also a federal and state statute that governs this issue: The Fair Labor Standards Act (FLSA) and the Virginia Minimum Wage Act (“VMWA”). The minimum wage analysis under the VMWA mirrors the FLSA analysis. To establish violations of the FLSA and the VMWA for non-payment of minimum wages, the worker must show merely that (1) he/she was employed by the employer; (2) he/she was engaged in commerce or in the production of goods for commerce; (3) he/she was not compensated for all hours worked during each workweek at a rate equal to or greater than the then-applicable minimum wage; and (4) none of the exemptions in 29 U.S.C. § 213 applied to the worker’s position. Damages under the FLSA and the VWMA require payment of minimum wage; hence, this results in required payment of the Virginia minimum wage since it is higher than that set forth under federal law.
3. Violation of The Virginia Wage Payment Act
Virginia has also passed the Virginia Wage Payment Act (VWPA). This requires that all employers operating a business in the Commonwealth are required to establish rates of pay for employees as well as regular pay periods that are at least once every two weeks or twice each month. Employers may not “withhold any part of the wages of salaries of any employee except for payroll, wage or withholding taxes or in accordance with law, without written and signed authorization of the employee.” Virginia Code § 40.1-29(C); See also, Blanchard v. Cap. One Servs., LLC, 91 Va.Cir. 320 (2015). This statute instructs Courts to assess liability when an employer has “knowingly failed to pay wages to an employee.” Id. An employee acts “knowingly” if the employee:“(1) has actual knowledge of the information, (2) acts in deliberate ignorance of the truth or falsity of the information, or (3) acts in reckless disregard of the truth or falsity of the information.” Id. § 40.1-29(K). An employer that knowingly fails to pay wages to an employee in accordance with the VWPA mandates that the Court must award triple the amount of wages due plus reasonable attorney’s fees and costs.
If you believe that your employer has misclassified you, it is important to assess these additional claims. Should you believe that you have been misclassified and/or your employer has breached these additional federal and/or state statutes, it may be beneficial to consult an experienced employment lawyer. If you have questions about these issues, please feel free to contact this author or any of the other attorneys at Ford Richardson, P.C.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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