40.1-29 - Time and medium of payment; withholding wages; written statement of earnings; agreement for forfeiture of wages; proceedings to enforce compliance; penalties.
§ 40.1-29. Time and medium of payment; withholding wages; written statementof earnings; agreement for forfeiture of wages; proceedings to enforcecompliance; penalties.
A. 1. All employers operating a business shall establish regular pay periodsand rates of pay for employees except executive personnel. All such employersshall pay salaried employees at least once each month and employees paid onan hourly rate at least once every two weeks or twice in each month, exceptthat (i) a student who is currently enrolled in a work-study program or itsequivalent administered by any secondary school, institution of highereducation or trade school, and (ii) employees whose weekly wages total morethan 150 percent of the average weekly wage of the Commonwealth as defined in§ 65.2-500, upon agreement by each affected employee, may be paid once eachmonth if the institution or employer so chooses. Upon termination ofemployment an employee shall be paid all wages or salaries due him for workperformed prior thereto; such payment shall be made on or before the date onwhich he would have been paid for such work had his employment not beenterminated.
2. Any such employer who knowingly fails to make payment of wages inaccordance with this section shall be subject to a civil penalty not toexceed $1,000 for each violation. The Commissioner shall notify any employerwho he alleges has violated any provision of this section by certified mail.Such notice shall contain a description of the alleged violation. Within 15days of receipt of notice of the alleged violation, the employer may requestan informal conference regarding such violation with the Commissioner. Indetermining the amount of any penalty to be imposed, the Commissioner shallconsider the size of the business of the employer charged and the gravity ofthe violation. The decision of the Commissioner shall be final.
B. Payment of wages or salaries shall be (i) in lawful money of the UnitedStates, (ii) by check payable at face value upon demand in lawful money ofthe United States, (iii) by electronic automated fund transfer in lawfulmoney of the United States into an account in the name of the employee at afinancial institution designated by the employee, or (iv) by credit to aprepaid debit card or card account from which the employee is able towithdraw or transfer funds with full written disclosure by the employer ofany applicable fees and affirmative consent thereto by the employee. However,an employer that elects not to pay wages or salaries in accordance withclause (i) or (ii) to an employee who is hired after January 1, 2010, shallbe permitted to pay wages or salaries by credit to a prepaid debit card orcard account in accordance with clause (iv), even though such employee hasnot affirmatively consented thereto, if the employee fails to designate anaccount at a financial institution in accordance with clause (iii) and theemployer arranges for such card or card account to be issued through anetwork system through which the employee shall have the ability to make atleast one free withdrawal or transfer per pay period, which withdrawal may befor any sum in such card or card account as the employee may elect, usingsuch card or card account at financial institutions participating in suchnetwork system.
C. No employer shall withhold any part of the wages or salaries of anyemployee except for payroll, wage or withholding taxes or in accordance withlaw, without the written and signed authorization of the employee. Anemployer, upon request of his employee, shall furnish the latter a writtenstatement of the gross wages earned by the employee during any pay period andthe amount and purpose of any deductions therefrom.
D. No employer shall require any employee, except executive personnel, tosign any contract or agreement which provides for the forfeiture of theemployee's wages for time worked as a condition of employment or thecontinuance therein, except as otherwise provided by law.
E. An employer who willfully and with intent to defraud fails or refuses topay wages in accordance with this section is guilty of a Class 1 misdemeanorif the value of the wages earned and not paid by the employer is less than$10,000 and is guilty of a Class 6 felony if the value of the wages earnedand not paid is $10,000 or more or, regardless of the value of the wagesearned and not paid, if the conviction is a second or subsequent convictionunder this section. For purposes of this section, the determination as to the"value of the wages earned" shall be made by combining all wages theemployer failed or refused to pay pursuant to this section.
F. The Commissioner may require a written complaint of the violation of thissection and, with the written and signed consent of an employee, mayinstitute proceedings on behalf of an employee to enforce compliance withthis section, and to collect any moneys unlawfully withheld from suchemployee which shall be paid to the employee entitled thereto. In addition,following the issuance of a final order by the Commissioner or a court, theCommissioner may engage private counsel, approved by the Attorney General, tocollect any moneys owed to the employee or the Commonwealth. Upon entry of afinal order of the Commissioner, or upon entry of a judgment, against theemployer, the Commissioner or the court shall assess attorney's fees ofone-third of the amount set forth in the final order or judgment.
G. In addition to being subject to any other penalty provided by theprovisions of this section, any employer who fails to make payment of wagesin accordance with subsection A shall be liable for the payment of all wagesdue, plus interest at an annual rate of eight percent accruing from the datethe wages were due.
H. Civil penalties owed under this section shall be paid to the Commissionerfor deposit into the general fund of the State Treasurer. The Commissionershall prescribe procedures for the payment of proposed assessments ofpenalties which are not contested by employers. Such procedures shall includeprovisions for an employer to consent to abatement of the alleged violationand pay a proposed penalty or a negotiated sum in lieu of such penaltywithout admission of any civil liability arising from such alleged violation.
Final orders of the Commissioner, the general district courts or the circuitcourts may be recorded, enforced and satisfied as orders or decrees of acircuit court upon certification of such orders by the Commissioner or thecourt as appropriate.
(Code 1950, § 40-24; 1962, c. 66; 1966, c. 88; 1968, c. 262; 1970, c. 321;1972, c. 848; 1977, c. 308; 1979, c. 50; 1989, c. 583; 1991, c. 499; 1993, c.600; 2002, c. 321; 2003, c. 638; 2004, c. 358; 2005, cc. 595, 851; 2009, c.728.)