16102769D
HOUSE BILL NO. 988
Offered January 13, 2016
Prefiled January 12, 2016
A BILL to amend and reenact §40.1-28.9 of the Code of
Virginia, relating to the minimum wage for tipped employees.
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Patron-- Lopez
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Committee Referral Pending
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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 wages of tipped
employees.
A. As
used in this article:
A. "Employer"
includes any individual, partnership, association, corporation, business trust,
or any person or groups of persons acting directly or indirectly in the
interest of an employer in relation to an employee;.
B. "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 on a voluntary basis;
4. Newsboys, shoe-shine boys, caddies on golf courses,
babysitters, ushers, doormen, concession attendants and cashiers in theaters;
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 or legal guardian;
7. Any person confined in any penal or corrective institution
of the State 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 boys' and/or girls' summer camp;
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.
[Repealed.]
12. Any person
whose employment is covered by the Fair Labor Standards Act of 1938 as amended;
13. Any person whose earning capacity is impaired by
physical deficiency, mental illness, or intellectual disability;
14. 12. Students
participating in a bona fide educational program;
15. 13. Any
person employed by an employer who does not have four or more persons employed
at any one time; provided that husbands, wives, sons, daughters and parents of
the employer shall not be counted in determining the number of persons
employed;
16. 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 the person is not employed more than 20 hours per week;
16A. 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.
C. "Tipped employee" means an employee
engaged in an occupation in which he customarily
and regularly receives more than $30 a month in tips.
"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 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.
D. 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. Commencing July 1, 2016, (i) the
cash wage paid to a tipped employee by his employer shall not be less than $5.00 per
hour and (ii) the credit used to determine the wage of
a tipped employee shall not exceed the
difference between the cash wage established pursuant to clause (i) and the
minimum wage established pursuant to §40.1-28.10.
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