HB 333

            
2020 SESSION


20106980D

HOUSE BILL NO. 333

AMENDMENT IN THE NATURE OF A SUBSTITUTE

(Proposed by the House Committee on Labor and Commerce

on January 30, 2020)

(Patron Prior to Substitute--Delegate Krizek)

A BILL to amend and reenact � 40.1-28.9 of the Code of
Virginia, relating to the minimum wage; application to persons whose employment
is covered by the federal Fair Labor Standards Act and to persons with impaired
earnings capacity.

Be it enacted by the General Assembly of Virginia:

1. That � 40.1-28.9 of the Code of Virginia is amended and
reenacted as follows:

� 40.1-28.9. Definitions; determining wage of tipped employee.

A. As used in this article:

"Employee" includes any individual employed by an
employer, except the following:

1. Any person employed as a farm laborer or farm employee;

2. Any person employed in domestic service or in or about a
private home or in an eleemosynary institution primarily supported by public
funds;

3. Any person engaged in the activities of an educational,
charitable, religious, or nonprofit organization where the relationship
of employer-employee does not, in fact, exist, or where the services
rendered to such organizations are organization is on a voluntary
basis;

4. Caddies on golf courses;

5. Traveling salesmen or outside salesmen working on a
commission basis; taxicab drivers and operators;

6. Any person under the age of 18 in the employ of his
father, mother parent or legal guardian;

7. Any person confined in any penal or corrective institution
of the State Commonwealth or any of its political subdivisions or
admitted to a state hospital or training center operated by the Department of
Behavioral Health and Developmental Services;

8. Any person employed by a summer camp for boys, girls, or
both boys and girls;

9. Any person under the age of 16, regardless of by whom
employed;

10. Any person who normally works and is paid based on the
amount of work done;

11. Any person whose employment is covered by the Fair Labor
Standards Act of 1938, as amended;

12. Any person whose earning capacity is impaired by
physical deficiency, mental illness, or intellectual disability;

13. 12. Students participating in a bona fide
educational program;

14. 13. Any person employed by an employer
who that does not have four or more persons employed at any one time;,
provided that husbands, wives the spouse, sons, daughters
children, and parents of the an individual employer shall not
be counted in determining the number of persons employed;

15. 14. Any person who is less than 18 years of
age and who is currently enrolled on a full-time basis in any secondary school,
institution of higher education, or trade school, provided that
the person is not employed more than 20 hours per week;

16. 15. Any person of any age who is currently
enrolled on a full-time basis in any secondary school, institution of higher
education, or trade school and is in a work-study program or its
equivalent at the institution at which he or she is enrolled as a
student;

17. 16. Any person who is less than 18 years of
age and who is under the jurisdiction and direction of a juvenile and domestic
relations district court; or

18. 17. Any person who works as a babysitter for
fewer than 10 hours per week.

"Employer" includes any individual, partnership,
association, corporation, or business trust, or any person or
groups group of persons acting directly or indirectly in the
interest of an employer in relation to an employee.

"Wages" means legal tender of the United States or
checks or drafts on banks negotiable into cash on demand or upon acceptance at
full value; provided, wages may include. "Wages" includes
the reasonable cost to the employer of furnishing meals and for lodging
to an employee, if such board or lodging is customarily furnished by the
employer, and used by the employee.

B. In determining the wage of a tipped employee, the amount
paid such employee by his employer shall be deemed to be increased on account
of tips by an amount determined by the employer, except in the case of an
employee who establishes by clear and convincing evidence that the actual
amount of tips received by him was less than the amount determined by the
employer. In such case, the amount paid such employee by his employer shall be
deemed to have been increased by such lesser amount.