Virginia needs to strengthen its laws against wage theft in order to:
- Ensure that workers are paid all their wages.
- Level the playing field for employers that do pay workers fairly and compete against unscrupulous employers.
- Strengthen the economy – most workers spend the bulk of their wages and so making sure that especially low-wage workers are paid all their wages stimulates the economy.
- Provide needed government resources by ensuring that all employers are paying their share of payroll taxes, unemployment taxes and workers compensation insurance.
VICPP proposes to revise both the Virginia Minimum Wage Act and the Payment of Wages Act in the following ways:
Virginia Minimum Wage Act
- Remove the “Jim Crow” aspects. Essentially, the law excludes almost every category of worker that was historically held by African Americans from the state Minimum Wage Act. We should remove exemptions for:
- Farm laborer or farm employee.
- Any person employed in domestic service or in or about a private home or in an eleemosynary institution primarily provided by public funds.
- Shoe shine boys
- Caddies on golf courses
- Concession attendants
- Cashiers in theaters
- Remove exemptions for piece work. Those paid by the piece should still earn minimum wage.
- Cover all workers. Currently, the law covers businesses with four or more persons employed at any one time. VICPP proposes removing this and covering all employees who are not otherwise exempt. Most states cover all workers. Thirty-four states cover all employees regardless of number of employees. Three states (Indiana, Michigan, Vermont) cover businesses with two or more employees. Three states are the same as Virginia (Arkansas, Illinois, Nebraska). Five states have no minimum wage law (Alabama, Louisiana, Mississippi, South Carolina, Tennessee). And three have higher standards (Oklahoma is 10, but over 100,000 in sales is covered; West Virginia and Georgia are 6).
- Require recordkeeping. The Fair Labor Standards Act (the federal minimum wage) requires employers to keep records. Virginia’s Minimum Wage bill should too. All good employers already do this and others should.
- Define who is an employee. There is a lot of confusion about who is an employee and who is an independent contractor. This will address the confusion and use definitions that are already used by other Virginia agencies, such as the Virginia Employment Commission.
Virginia Payment of Wages Act
- Paystub information. Many workers are cheated of wages because they are not given a paystub or online accounting that shows how they are paid. There are simple paystub programs that employers can purchase for approximately $100, so this is a reasonable request of employers to help protect workers.
- Private Right of Action. Workers should be able to take their claims to court. If workers are assisted by an attorney and the defendant was found to have cheated workers of wages, the defendants should have to pay reasonable attorney fees. The would potentially reduce the workload for the Department of Labor and Industries (DOLI) because some workers would turn to attorneys instead of filing claims with DOLI.
- Penalties for retaliation. Right now, if a worker files a complaint for unpaid wages, the employer can fire the worker with no consequences. This is terribly wrong. There should be strong penalties against retaliation.
- Ability to investigate. Under current law, if an employer is cheating 100 workers, but only one files a complaint, DOLI can only investigate that one worker’s complaint. The agency should have the ability to review all the payroll records if there is good reason to believe that multiple workers are being underpaid.
Creating a Private Right of Action could save on work time, but several of the other proposals, such as covering all sized workplaces and investigating workplaces where DOLI staff suspect that lots of workers are being cheated would add work to the agency. Thus, we will advocate budget additions to cover the extra workload.