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Overtime Wage Legislation Fixing Comp Time Advances

Legislation enacted by the 2021 General Assembly created the Virginia Overtime Wage Act, which was intended to allow workers to pursue overtime claims against their employers in state court, as opposed to having to go through the time and expense of seeking restitution in federal court. However, post-session, the Virginia Department of Labor and Industry (DOLI) interpreted the legislation to eliminate the long standing FLSA provision that allows state and local public employers the flexibility to provide “comp time” in lieu of overtime pay to employees and instead require payment of cash wages pursuant to the Fair Labor Standards Act. This would have major fiscal and scheduling implications for both state and local governments. The fallout from not being able to provide compensatory time may cause local governments and the state to adopt major overhauls of their use of overtime that will impact their ability to deliver vital services and provide flexibility to their employees. During the 2021 Special Session II, VACo introduced budget language to fix this issue for the remainder of FY 2023.

Several bills and budget amendments have been filed this session that address this issue going forward. At VACo’s request, HB 1143 (Byron) and SB 365 (Stuart), were introduced to specify in the Code of Virginia that public agencies, as defined under the Fair Labor Standards Act (FLSA) may provide an employee compensatory time in lieu of overtime compensation in accordance with the relevant provisions of FLSA. Delegate Byron and Senator Stuart also introduced budget amendments at VACo’s request as a “belts and suspenders” approach should the legislation run into difficulty or fail to be enacted.

HB 1173 (Ware) and SB 631 (Barker), are similar bills that amend to the code to remove the provisions of the Virginia Overtime Wage Act that led to the DOLI interpretation eliminating the ability of public agencies to provide comp time in lieu of wages time by public agencies. VACo supports these bills as well. HB 1173 passed the House by a vote of 59-40. The Senate Commerce and Labor Committee met February 7 and voted to incorporate SB 365 into SB 631 and to report the later unanimously, 15-0. VACo is thankful to the patrons for their efforts and urges its members to support these bills.

VACo Contact: Jeremy R. Bennett

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