One of the many subjects that is addressed by labor laws is how employees are to be paid. It is important to note that paycheck laws vary widely from state to state, with some states adhering only to federal laws, while other states have created their own paycheck laws at the state level.
For example, one of the most common paycheck laws deals with minimum wage. Although federal minimum wage must be adhered to by all states, some states have instituted higher minimum wages which must be adhered to by any employers of that state. Paycheck laws are also commonly referred to as wage and hour laws.
Wage and hour laws are the set of laws that govern the basic standards for minimum wages, as well as overtime pay in the workplace. The principal wage and hour law in the United States is known as the Fair Labor Standards Act (“FLSA”).
The FLSA has provisions that cover paycheck laws including:
- Minimum Wage: The FLSA sets standards for the wages that are to be paid to employees;
- Overtime Pay: The FLSA states when and who is eligible to receive overtime pay; and
- Child Labor Protection: The FLSA also contains provisions which protect children from child labor.
Importantly, all employers are legally required to adhere to the rules set out in the FLSA. Failure for an employer to do so can result in legal consequences, such as wage and hour lawsuits filed by any affected employees.
When Must Paychecks Be Sent Out in Virginia?
The law regarding paychecks in Virginia is set out in the Code of Virginia (the “Code”). Within the “Code” there is a subsection of the law titled “Protection of Employees,” which contains the laws intended to protect the rights and interests of employees and their paychecks. Thus, if an employee has worked for their wages and has not received them then they will have the right to recover those wages as set out in that section of laws.
Under Virginia labor laws, paychecks must be sent out in Virginia that will depend on the employee’s classification and pay basis. Under the law, hourly employees in Virginia should be paid at least twice a month or every two weeks (i.e. biweekly). However, hourly employees may also consent to other pay structures, such as being paid on a monthly basis.
For example, students enrolled in a work-study program or employees earning more than 150 percent of the state’s weekly wage per week may consent to a monthly pay structure. If the employee is classified as a salaried employee, they are required to be paid at least once a month. Importantly, employers are allowed to pay their employees more often than these minimum pay structures, but they must meet the legal minimums.
What Happens If I Am Fired?
Whether you have been fired or you have quit your job will not make a difference as to when you should expect your final paycheck. Virginia final paycheck laws state that following the termination of an employee’s employment, they should receive any owed wages by the next scheduled payday.
Additionally, any unused vacation or sick benefits for that employee should be paid out in accordance with the company’s policy. If any part of your final paycheck has been withheld, including unpaid sick or vacation time, you should carefully review your employment contract. If your contract specifies that such benefits should have been paid, you should then demand payment from your employer. If they refuse to pay, you can file a complaint or sue your employer privately as discussed below.
Can My Paycheck Be Garnished?
Garnishment is essentially an order that directs money or property of an individual be seized or withheld to satisfy a debt. In Virginia, employers are permitted to deduct money from an employee’s paycheck automatically, but only when required by the law. For example, an employer may deduct taxes or be mandated to otherwise garnish a paycheck by a court order, such as a child support order.
Otherwise, your employer can only take money from an employee’s paycheck if they provide them with written permission to make such a deduction. Additionally, an employer cannot garnish an employee’s wages for cash register shortages or to pay for damages that were caused to property while an employee was working.
Once again, even though an employee’s wages cannot be garnished to pay off work-related debts, an employee’s wages can be garnished for personal debts. Garnishment can even occur without a court order such as for unpaid taxes or defaulted student loans. However, for all other personal debts, a creditor would have to first go to court and get a court to issue a garnishment order against an employee before their wages may be withheld from them.
Can I Recover a Withheld Paycheck in Virginia?
Virginia law expressly states that employers are not allowed to withhold an employee’s paycheck under any circumstances. Thus, if an employee’s paycheck or wages are being withheld for any reason, they have the right to recover the wages from that paycheck by reporting the employer to the Commissioner of the Department of Labor and Industry or suing their employer privately.
The Virginia Department of Labor and Industry’s Labor and Employment Law Division can assist employees in getting their unpaid wages from their employer. Suing an employer for withheld wages is discussed further below.
How Long Can an Employer Hold My Paycheck?
Virginia law is clear that an employer is not allowed to withhold an employee’s paycheck unless:
- The amount withheld is for a tax, payroll, or court-ordered purpose; or
- The employee gives written consent for the amount to be withheld.
This means that deductions from final paychecks in Virginia are both common and allowed. For example, an employer may withhold part of a final paycheck to pay federal taxes.
Can I Sue My Employer for Not Paying Me on Time?
In the past, Virginia law only allowed employees to file a complaint with the Commissioner of the Department of Labor and Industry in Virginia. After the complaint was filed, the Commissioner would decide whether or not the employee could pursue action against their employer for unpaid wages.
However, as of July 1, 2020, Virginia employees may now go directly to court and file a civil lawsuit against their employer for unpaid wages. Under this new law, Virginia employees may initiate a lawsuit within three years of the date their employer fails to pay them. If successful in their lawsuit, Virginia employees may recover damages including:
- Two times the amount of unpaid wages, plus eight percent interest and reasonable attorney fees and costs if the nonpayment of the wages was unknowingly withheld by the employer; or
- Three times the amount of unpaid wages and reasonable attorney fees and costs if the employer knowingly withheld wages.
Is There Anything Else I Should Know?
It is important to note that there are some wage deductions that are perfectly legal in Virginia. For example, an employer can require an employee to cover the cost of uniforms or tools out-of-pocket, as long as purchasing these items does not mean that employee will be receiving less than minimum wage for that pay period. Further, if a job has a required drug test before a prospective employee is able to start work, then the employer can ask their prospective employee to cover the cost for that as well.
Additionally, with the new law passed on July 1, 2020, Employers are now prohibited from retaliating against any employee who files an unpaid wages complaint with the Commission of Department of Labor and Industry, files a private civil lawsuit for unpaid wages, or testifies in connection with another employee’s lawsuit for unpaid wages. If an employer does retaliate, the Commissioner may bring legal action against that employer.
Where Can I Find the Right Lawyer?
If you are an employee working in Virginia, and you are experiencing issues related with Virginia paycheck laws, you should consult with an experienced Virginia employment attorney.
An experienced employment attorney will be most familiar with Virginia’s paycheck laws, and how they will affect your legal options. An employment lawyer will also be able to determine whether you have a valid claim for unpaid wages. Finally, an attorney will be able to initiate a civil lawsuit against your former employer on your behalf, as well as be able to represent you in court, as needed.
