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Some Democrats look to scale back overtime law they passed last year

Person speaking
Del. Mike Mullin (D-Newport News) at a 2018 event. (Photo: Craig Carper/VPM News)

Last year, House Democrats cheered the passage of a bill that backers said would make it easier for employees who were denied their overtime wages to get relief in court. This year, the bill’s sponsor and a handful of other Democrats are joining Republicans in voting to scale back some of those rules. Labor advocates say the move would reduce protections for workers while backers of the changes say they’re necessary to clean up a bill that didn’t align with its stated goals.

Del. Mike Mullin’s (D-Newport News) Virginia Overtime Wage Act gives many workers a right to sue in state rather than federal courts if they weren’t paid overtime they were due. Federal lawsuits are “an expensive and time consuming process,” Mullin said in a committee last year, describing state courts as a smoother path. Mullin repeatedly said his bill was otherwise broadly aligned with federal overtime rules. “It mirrors what we already have in federal law,” he told a Senate committee in February 2021.

But the bill was arguably friendlier to workers in ways that only became clear to some lawmakers after it was passed. A year later, business interests, Republicans and a handful of Democrats are pushing legislation that scales back who is eligible under the act, how much money wronged employees can claim and the statute of limitations on overtime claims. Some workers protected under current law – including live-in domestic workers, agricultural laborers who work at larger, non-family farms and mechanics – would lose the existing overtime protection.

Many other workers would still have the option of going to state court, but would be eligible for double damages – rather than current triple damages – in cases where an employer is found to have knowingly violated the law. They would have two years to take the case to court rather than three under the current law.

Backers of the changes say they align Virginia to federal overtime laws while preserving the right to take action in state court – how they say the bill was sold to them last year. Sen. George Barker (D-Fairfax) says that Mullin’s bill was “misrepresented” when it came before the chamber last year and is sponsoring legislation that would pare it back.

Critics of Mullin’s bill say it had unintended consequences, including barring time off in lieu of overtime pay for public workers. The law also uses a different formula than federal law for calculating the rate of overtime pay due to some salaried workers, significantly increasing the amount employers are required to pay out. While some of those concerns were addressed in a special session budget approved last year, that language expires in July and doesn’t go as far as industry groups wanted. Virginia Chamber of Commerce President Barry DuVal said in a statement that Mullin’s bill went far beyond its stated goals “and dramatically increased the cost of doing business for some industries.”

“What happened last year is very unfortunate in the business climate in Virginia,” Sen. Steve Newman (R-Bedford) said last week as he backed altering Mullin’s bill.

Mullin denies misconstruing his bill,  the text of which had only minor changes after it was introduced. Still, he joined seven other House Democrats and all but one Republican to vote this month for legislation from Del. Lee Ware (R-Powhatan) rolling back parts of his original bill. He says the choice was strategic given GOP calls to rescind the entire package.

“I would always prefer to preserve as much as possible of our progress when faced with the possibility of losing it entirely,” Mullin said in an interview.

Alexsis Rodgers, state director of the domestic worker advocacy group Care in Action, said it was a mistake to revert to the 1937 Fair Labor Standards Act, which she said “explicitly excluded lots of categories of workers that are predominantly Black and brown.” She called on the self-styled “brick wall” of Senate Democrats to reject rollbacks of policy passed when the party controlled the full legislature and the executive mansion: “We can't allow any cracks in that brick wall,” Rogers said earlier this month.

Instead, 14 Democrats joined 18 Republicans to vote for Barker’s bill, which now heads to the GOP-controlled House.

Some of the finger-pointing stems from separate lists of worker exemptions for different sections of the FLSA. Mullin’s bill was primarily tied to federal minimum wage exemptions; Barker and Ware’s bills revert to the longer list of FLSA exemptions.

It’s not clear how aware lawmakers or business groups were of that distinction last year, when Mullin’s bill was making its way through the legislature. In a floor speech last February, Senate Majority Leader Dick Saslaw (D-Fairfax) said Mullin’s bill takes in “most of the exemptions and inclusions to the federal overtime act [sic]– not all of the exemptions, but most of them.” After a few tweaks, Mullin said last January in committee, he wasn’t aware of anyone who objected to the legislation, and no groups spoke out against it in committee meetings. It passed largely along party lines and was signed by then-Gov. Ralph Northam.

In interviews last week, Mullin himself initially claimed Senate lawmakers had added exemptions beyond those in his original bill, but bill histories online show the exemptions went largely unchanged as the legislation advanced. In a later interview, Mullin said it was possible that some lawmakers had confused different lists of federal exemptions.

Lawmakers continue to negotiate limited changes to the law. Last week, Barker amended his bill to include some airport workers, who would have been removed from protections, but said on the Senate floor that he didn’t plan on adding other groups. In an interview, he acknowledged his bill removed existing protections for agricultural and domestic workers but said those cases could be addressed in a study included in his legislation. Its findings would be due Nov. 1.

Some domestic and farm workers “would lose the protections they've had just since last July,” Barker said. But, he said, “we need to make sure that we're making decisions based upon factual information rather than misrepresentations of the bill.”

Mullin said he hoped domestic and farm workers would ultimately be protected: “I'm hopeful that we'll be able to include everyone under the act at some point in the future,” he said.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.