How to Collect Your Wages in Virginia Without Attorney Representation
In Virginia, there are basically three ways to collect your wages.
United States Department of Labor, Wage and Hour DivisionUnder both Federal and State wage laws, you can only claim payment for hours worked; they do not include holiday pay or vacation pay or severance pay. If you are simply owed a last paycheck and nothing else, the easiest way is to contact the Wage and Hour Division of the U.S. Department of Labor (DOL) and file an agency complaint (https://www.dol.gov/whd/howtofilecomplaint.htm) with it. When you call, an investigator usually will obtain permission to use your name and collect information on your owed wages. If the situation only concerns you and no other employees and is subject to the laws enforced by DOL, the investigator will normally call the employer and attempt to get the employer to release the check to you.
If your situation involves a violation that affects many employees, then the company will be set up for an investigation to ensure the employer's compliance with the laws that the Wage and Hour Division enforces and payment of any back wages owed to employees. This, however, can take up a substantial amount of time and the time lag can reduce the amount of back wages that you are owed once you no longer work there. This is because the statute of limitations (usually 2 years) for the Fair Labor Standards Act does not stop until US DOL files a legal complaint in any court of competent jurisdiction, which is generally a US district court. So if you worked for a company 2 years and then quit at the end of the second year, you will only be eligible for receive 1 years' worth of back wages if the US DOL files a complaint one year after you left.
If the Wage and Hour division cannot bring you relief, the Fair Labor Standards Act (FLSA), has a private right of action, which allows you to sue your employer on your own (16(b) of the Act, 29 U.S.C. ? 216(b)). This provision will allow you to collect your back wages (subject to the statute of limitations described above), an equal amount of back wages in liquidated damages plus reasonable attorney fees and court costs. You are also protected against prohibited retaliation under section 15(a)(3) and can include this claim along with the individual right of action under 16(b). The generosity of the 16(b) can encourage a private attorney to handle an employee's claim. It can also be used to encourage an employer to pay what is legally owed to you without much delay.
Virginia Department of Labor and IndustryYou can also contact the Virginia Department of Labor and Industry (DOLI) and file a complaint (http://www.doli.virginia.gov/laborlaw/laborlaw_forms_p1.html) to obtain the wages owed under its statutes. Virginia has a minimum wage statute (Virginia Minimum Wage Act, section 40.1-28.8 through 40.1-28.12 of the Code of Virginia) and a wage payment statute (Virginia Payment of Wage Law, section 40.1-29 of the Code of Virginia). It has, however, no law that requires payment of overtime hours worked as does the FLSA. Keeping in mind that DOLI cannot collect any over-time payment for you, it can collect your agreed-upon wage under Virginia's wage payment law, not just the applicable minimum wage.
DOLI will not collect holiday pay or vacation pay or severance pay. Also, the wage payment act has no private right of action such as the FLSA above.* So, only DOLI can enforce the minimum wage and the agreed-upon wage. Further, it will only accept claims that do not exceed $15,000.
*On 4/8/20, the Virginia Legislature modified the Wage Payment Act to provide a private right of action,--effective 7/1/2020, --which will allow you to sue on your own. If the amount of wages is no more than $5000, you can bring your claim small claims court. If your claim is greater than $5000, you will most likely need the assistance of an attorney. Along with the private right of action, the amended law now has a three-year statute of limitations, a provision for treble damages, attorneys’ fees and costs among other protective measures for employees. Should you, instead, wish to have DOLI prosecute your claim, keep in mind that DOLI will not collect holiday pay or vacation pay or severance pay nor will it accept claims that exceed $15,000.
Wage Payment Act (as amended 4/8/90, effective 7/1/90)This section is in the process of being revised in light of the 1990 legislation.
Virginia District Court, Small Claims DivisionIf you are unsuccessful in your efforts to collect the wages owed through DOL or DOLI or if you do not want to wait for DOL to complete its investigation because the statute of limitation is running, you have a third option. If your wages are no more than $5000.00, you can file a claim for unpaid wages in the small claims division of a Virginia District Court (http://www.courts.state.va.us/resources/small_claims_court_procedures.pdf). If the amount is greater than $5000.00, you can file in a Virginia District Court. If the employer is covered by the FLSA, Virginia Minimum Wage Act and/or Virginia Wage Payment Act and you are not an exempt employee under any of these laws, you can use them as the bases for your claim of unpaid hours worked.
If you have a claim for non-hours worked issues such as holiday pay, vacation pay and/or severance pay, you can include a claim for such payment under state contract law. In order to successfully prove that you are entitled to such payments, you will have to show that you complied with the employer's policies (usually laid out in an employee handbook) governing these payments. So if you were fired for cause, many employers will file a counter-claim asserting that you are not entitled to such pay because their policies justify non-payment under such circumstances. Keep in mind that once you file a contract claim, the employer can file a claim against you even if it is not related to your non-hours worked claim.