SB 719

            
2020 SESSION

20103061D

SENATE BILL NO. 719


Offered January 8, 2020


Prefiled January 7, 2020

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.
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Patron-- McClellan

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Referred to Committee on Commerce and Labor

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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. Students participating in a bona fide educational 
 program;
 
 
14. 12. 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. 13. 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. 14. 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. 15. 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. 16. Any 
 person who works as a babysitter for fewer than 10 hours per week; or
 
 
17. Until July 
 1, 2024, any person who is paid pursuant to a special 
 certificate issued under 29 U.S.C. � 214(c) of the Fair Labor Standards Act of 
 1938, as amended.
 
 
"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.