Virginia Overtime Wage Act and Its Impact on Licensed Staff

May 18, 2021

Special Report
Virginia Overtime Wage Act and Its Impact on Licensed Staff

As SESCO has previously reported, beginning July 1, 2021, all Virginia employers will be subject to new state overtime pay requirements. Governor Ralph Northam signed into law the Virginia Overtime Wage Act on March 31, 2021.

So why is this new law so critical to funeral home owners and licensed staff? As we know, consistent with SESCO’s FLSA practice within the funeral profession as well as supported by NFDA’s general counsel, T. Scott Gilligan, funeral directors and embalmers in the state of Virginia are nonexempt. This means that all licensed staff are due overtime for hours worked in excess of 40 hours per week. Further, the new Virginia regulations prohibit funeral home owners to employ the Fluctuating Workweek Method of Payment (1/2 time for hours worked in excess of 40 hours per week).

Many owners have in the past “rolled the dice” or considered their licensed staff as exempt. However, moving forward after July 1, 2021, the stakes for noncompliance are just frankly too high not to be in compliance. In addition to prohibiting nonexempt salaried pay plans such as the Fluctuating Workweek Method of Payment, the penalties for noncompliance have greatly increased (much more than the Federal Department of Labor’s).

Penalties for noncompliance in Virginia now include:

  • Automatic three (3) year look back to calculate penalties for those staff who are due overtime.
  • Automatic assessment of three (3) years of liquidated damages. This, in essence, doubles the overtime penalties assessed.
  • Provides treble damages for knowing violations. And with the information available in the profession, a plaintiff’s attorney will make this a part of their case.
  • Should the funeral home litigate a case, there is pre-judgment interest at 8% per year on the assessed penalties.

Given these significant penalties, the removal of the Fluctuating Workweek Method of Payment and the fact that it’s clear funeral directors and embalmers are nonexempt in the state of Virginia, you should conduct a thorough audit of your pay practices. SESCO was founded in 1945 by a wage-hour investigator and as such, wage and hour compliance is a major part of our practice. SESCO also “specializes” in consulting within the funeral profession and therefore we can provide support in revising pay plans, addressing scheduling and subsequent hours of work to reduce overtime obligations for licensed staff as well as employ other practical, contemporary practices to reduce overtime for licensed staff.

Please contact SESCO by telephone or email as follows to discuss your current compensation practices. This time is covered by your association with NFDA and as such, is provided at no cost. Please also find below a special HR/Employment Law support program coordinated between SESCO and NFDA for members across the country. Please take advantage of this program.

Exclusive NFDA – SESCO Human Resource and Employment Law Program

As a valued member of NFDA, your firm is eligible to participate in this exclusive membership program providing professional human resource and employment law services through a fixed monthly service agreement. The program provides you and your firm the following at no additional charge:

  • Employee Manual – SESCO will review and update your current employee manual or develop a new employee handbook.
  • Forms, Posters, Documentation – SESCO will provide all the necessary and required personnel forms branded with your funeral home’s name and logo. Further, SESCO will provide all the required federal and state posters as well as other documentation regarding any human resource management issue.
  • Job Descriptions – SESCO will provide in Word format suggested criteria-based job descriptions for all positions within your organization. These can be customized by you and your team or with SESCO’s assistance. These job descriptions will also be branded with your funeral home’s name and logo.
  • Employment Law Compliance – SESCO will conduct an annual human resource and employment law assessment of all of your HR and personnel practices to not only determine your compliance posture but also to ensure that your systems are effective and proactive. A thorough report will be provided with staff recommendations.
  • Under this service, you and your team will also receive required harassment training.

  • Employment Law Communications – You and your team will receive SESCO’s newsletter as well as weekly updates. SESCO will also provide client alerts and updates via email as necessary.
  • Ongoing Support – Our team of certified consultants and employment law attorneys are available daily at no additional charge with no time limits to assist in any and all human resource practices.

These services, again, are provided under one low monthly fee and there are no other additional or hidden charges associated with this program.

Cases and monthly fee schedule (24 months minimum)
150 or less: $100
151-300: $150
301-500: $200
500+: $275

Bill Ford