EXECUTIVE DIRECTOR’S
A late-breaking update.
MESSAGE
RED ALERT: VIRGINIA OVERTIME WAGE ACT COMPLIANCE I have another one for you. It’s like a roller coaster but without any of the fun parts. I just got punched in the face a few minutes before typing this message, and I promise the next issue will have more coverage on what I’ll now say is a “potential red alert.” (I hope we just give you an article about the sky NOT falling in the August issue.) For those in Virginia, the Special Session of the Legislature passed an Overtime Wage Act (VOWA) that will change the dynamic of flat rate, commission or otherwise structured employees beginning July 1. It looks very similar to the California laws, and I’m diving into it immediately. I’m grateful we have a human resources attorney connection through our time at the Collision Industry Conference (CIC). I’m very hopeful our industry does continue to have a listed exemption (as previously known), but just in case, here’s what I’ve found thus far. This bill (HB2063ER) fell totally under the radar of pretty much anyone in my circle or the news. A proactive shop called to ask about it, because he owns multiple potentially affected businesses that use flat rate hour commission structures for compensation. He’s understandably also caught completely off guard and wants to get in front of what will take place in just two weeks from this writing – if our industry doesn’t have the exemption we think. As it looks, the VOWA may depart from the federal law in how the regular rate of pay is calculated and give a longer statute of limitations to bring potential claims and the possible damages available. In my brief investigation, I have found that it looks as though the overtime calculation will be 1/40 of ALL wages earned, hourly and other, as a total figure applied to any wage hour exceeding 40 in a workweek.
8
July 2021
If the exemption for repairers using commission compensation still applies, the “minimum wage compensation” needs to be one and a half times minimum wage and then half of monies derived from commissions. The actual language is found in 29 U.S. Code § 207(i). The new law for salaried and other regularly paid employees appears to remove employers’ ability from paying nonexempt employees a fixed salary to cover wages for hours exceeding 40 in a workweek – even if on a fluctuating workweek basis – then requiring instead an hourly rate calculation for overtime pay for even these employees. Again, this is all new, so I’m waiting on the guidance related to the exemption for piece rate wages or clarification from the Department of Labor and Industry, as it is the overseeing entity – but cursory glance is not yielding much result with them. I’m hopeful that WMABA will be able to demystify and clarify the changes this would entail. If you’re interested in the outcome of this research, I highly recommend calling and getting on the list of those we will call or email first! We want to help you in any hurdle you face. Unfortunately, I find myself being smacked by this – as most of you reading may be as well!
Jordan Hendler
(804) 789-9649 jordanhendler@wmaba.com
