                                 CODE OF VIRGINIA

(EFFECTIVE JULY 1, 2030) DEFINITIONS; DETERMINING WAGE OF TIPPED EMPLOYEE (§
40.1-28.9)

A. As used in this article:
			&#8220;Adjusted state hourly minimum wage&#8221; means the amount established
by the Commissioner pursuant to subsection F of § 40.1-28.10.
			&#8220;Domestic service&#8221; means services related to the care of an
individual in a private home or the maintenance of a private home or its
premises, on a permanent or temporary basis, including services performed by
individuals such as companions, cooks, waiters, butlers, maids, valets, and
chauffeurs.
			&#8220;Employee&#8221; includes any individual employed by an employer.
&#8220;Employee&#8221; includes a home care provider. &#8220;Employee&#8221;
does not include the following:

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

   2. 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 organization are on a voluntary basis;

   3. Caddies on golf courses;

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

   5. Any person under the age of 18 in the employ of his parent or legal
   guardian;

   6. Any person confined in any penal or corrective institution of the
   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;

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

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

   9. Students participating in a bona fide educational program;

   10. 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;

   11. 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 is
   enrolled as a student;

   12. Any person who works as a babysitter for fewer than 10 hours per week;

   13. Any person participating as an au pair in the U.S. Department of
   State&#8217;s Exchange Visitor Program governed by 22 C.F.R. &#xA7; 62.31;

   14. Any individual employed as a temporary foreign worker as governed by 20
   C.F.R. Part 655; and

   15. Any person who is exempt from the federal minimum wage pursuant to 29
   U.S.C. &#xA7; 213(a)(3).
   				&#8220;Employer&#8221; includes any individual, partnership, association,
   corporation, or business trust or any person or group of persons acting
   directly or indirectly in the interest of an employer in relation to an
   employee. &#8220;Employer&#8221; includes the Commonwealth, any of its
   agencies, institutions, or political subdivisions, and any public body.
   				&#8220;Federal minimum wage&#8221; means the minimum wage or, if
   applicable, the federal training wage prescribed by the U.S. Fair Labor
   Standards Act, 29 U.S.C. &#xA7; 201 et seq.
   				&#8220;Home care provider&#8221; means an individual who provides (i) home
   health services, including services provided by or under the direct
   supervision of any health care professional under a medical plan of care in a
   patient&#8217;s residence on a visit or hourly basis to patients who have or
   are at risk of injury, illness, or a disabling condition and require
   short-term or long-term interventions, or (ii) personal care services,
   including assistance in personal care to include activities of a daily living
   provided in an individual&#8217;s residence on a visit or hourly basis to
   individuals who have or are at risk of an illness, injury, or disabling
   condition.
   				&#8220;Tipped employee&#8221; means an employee who in the course of
   employment customarily and regularly receives tips totaling more than $30 each
   month from persons other than the employee&#8217;s employer.
   				&#8220;Wages&#8221; means legal tender of the United States or checks or
   drafts on banks negotiable into cash on demand or upon acceptance at full
   value. &#8220;Wages&#8221; includes the reasonable cost to the employer of
   furnishing meals and 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. An employer shall not classify an individual as a tipped employee
if the individual is prohibited by applicable federal or state law or regulation
from soliciting tips.

HISTORY: 1975, c. 530; 1976, c. 442; 1977, c. 432; 2007, cc. 816, 832; 2012, cc.
476, 507; 2014, c. 734; 2019, cc. 330, 331; 2020, cc. 1145, 1146, 1147, 1204,
1242; 2023, c. 782.