Being Denied Overtime in Virginia
My employer isn't paying me overtime — here's what Virginia law says and what to do next.
Statute: Va. Code § 40.1-29.2
Deadline: 1095 days
Penalty: Virginia provides for overtime claims under the Virginia Overtime Wage Act. Employer may be liable for unpaid overtime plus an equal amount as liquidated damages, plus attorney fees. Three-year SOL
What is being denied overtime?
The rule is older than your grandparents and it hasn't changed: work more than 40 hours in a single workweek and your employer owes you at least 1.5 times your regular rate for every hour past 40. That's the Fair Labor Standards Act, on the books since 1938.
It covers most hourly workers automatically. If you're salaried but earn less than $684 a week ($35,568 a year), you're owed overtime no matter what your job title says. Above that salary line, your employer can call you "exempt" — but only if your actual day-to-day duties fit one of the narrow categories the DOL spells out (executive, administrative, professional, computer, or outside sales). The label isn't enough; the duties have to match.
One thing worth knowing: the DOL tried to raise the salary threshold to $58,656 in 2024, which would have pulled millions of mid-level salaried workers back into overtime eligibility. A federal judge in Texas vacated the rule in November 2024, so the line is still $35,568 going into 2026.
What to Do If Your Employer Doesn't Pay Overtime
Cases get won on records, not memory. Start there.
Step 1: Keep your own time log. Note when you start, when you stop, and every break. A notebook, a phone app, even photos of the time clock — anything contemporaneous beats your boss's word in front of a DOL investigator.
Step 2: Check the math on your pay stubs. Pull every week you cracked 40 hours. The overtime hours have to be paid at 1.5× your regular rate, and the "regular rate" includes most non-discretionary bonuses and commissions — which is why a lot of overtime claims are even bigger than people first think.
Step 3: Put it in writing. A short email to HR or your manager asking them to correct the underpayment is enough. Save the response (or the silence).
Step 4: File the complaint. The DOL Wage and Hour Division takes complaints at 1-866-487-9243 or online at dol.gov. You can also call an employment attorney — most take overtime cases on contingency, so there's no money up front.
How Virginia differs from federal law
Virginia enacted its own overtime law — the Virginia Overtime Wage Act (VOWA) — effective July 1, 2021:
- VOWA provides state-level overtime protections independent of the federal FLSA
- Overtime is required after 40 hours per workweek at 1.5x the regular rate
- Virginia does not require daily overtime
- VOWA applies to employees covered by the FLSA, providing an additional state remedy
- Virginia allows employees to bring private lawsuits for unpaid overtime with potential recovery of liquidated damages, prejudgment interest, and attorney fees
- The statute of limitations under VOWA is 2 years (3 years for willful violations), as amended by HB 1173 effective July 1, 2022
Additional steps in Virginia
File unpaid overtime complaints with the Virginia Department of Labor and Industry at (804) 371-2327 or online at doli.virginia.gov. You can also file with the federal DOL Wage and Hour Division or bring a private lawsuit under VOWA in Virginia circuit court.
What you should NOT do
Don't work off the clock. If your boss tells you to clock out but finish the task, that's textbook wage theft. Make a quick note of when it happened and what you were asked to do.
Don't take "you're exempt" at face value. Run the salary and duties tests yourself. If anything's off, you may be owed years of back pay.
Don't sit on it. The FLSA gives you 2 years from each paycheck (3 if the violation was willful). Wait too long and the earliest weeks fall off the back end of your claim.
Don't quit before you file. You can file while you're still on the payroll, and retaliation for filing a wage complaint is itself illegal under FLSA §15(a)(3).
Don't wait — the clock is ticking.
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Generate your overtime pay demand →This page is general legal information for Virginia, not legal advice for your specific situation. Laws change, and how a statute applies depends on facts we don't know. For advice on your matter, consult a licensed attorney in Virginia.