For employers in Virginia, responding to a DOLI unpaid wages complaint can be a confusing and challenging task. The Virginia Department of Labor and Industry, known as “DOLI,” is a body that regulates employers regarding their workplace and employment practices, including payment of wages. DOLI has certain enforcement mechanisms for its regulations, and employees can file unpaid wages complaints with DOLI alleging an employer has not paid them what they are owed. Understanding how to respond to a DOLI unpaid wages complaint, even if is without merit, is critical for any Virginia employer.
Responding to a DOLI Unpaid Wages Complaint
If a DOLI unpaid complaint has been filed, DOLI will review the complaint and make a determination as to whether it will accept the complaint. DOLI will then send the employer a letter notifying the employer that a complaint has been filed against them, and identifying the dollar amount and time period that the employee is claiming for unpaid wages. DOLI will provide the employer with a response deadline, usually within fifteen days of the letter, for the employer to submit a response contesting the complaint. Failure to provide DOLI with a response on time can result in DOLI presuming that the complaint is not contested and assessing significant monetary penalties against the employer.
It is important that a written response be both organized and detailed. While the response can be drafted and submitted by the employer, having an attorney who understands the DOLI regulations assist with responding can also add value to the process. For the response, and in addition to a written explanation of why the wages are not owed, DOLI will typically request cancelled checks, payroll records, wage calculations, tax withholding records, tax accounting records, time sheets, employment contracts, and authorizations for wage deductions. Once the response is submitted, DOLI will then review the response and make a determination as to whether unpaid wages and penalties are due.
The Determination
If DOLI determines that unpaid wages are due, DOLI will send a determination letter identifying the amount of unpaid wages due. In addition, DOLI will assess liquidated damages equal to the amount of the unpaid wages, in addition to 8% interest accruing from the date the the unpaid wages were originally due. DOLI can also further assess a civil monetary penalty, however the civil monetary penalty cannot exceed $1,000 per violation. The penalties for unpaid wages are significant and are often higher than the amount of the unpaid wages themselves. It is of the utmost importance to have legal counsel who can assist with a response and avoid penalties when possible.
After a determination is made, the employer has two options. The first option is to pay the unpaid wages, liquidated damages, and 8% interest within 15 days, in which case the civil monetary payment will be waived. The second option is to send a written request for a conference with a DOLI hearing officer within 15 days.
The Determination Response and Informal Conference
If you choose to contest DOLI’s determination of unpaid wages and request a conference, making sure your response is organized and detailed is of the utmost importance. DOLI requires that any response to a determination letter include all evidence that the employer wants considered at the conference. Any evidence that is not submitted in the employer’s response to the determination will not be considered without good cause. Meaning, even if there is relevant, exculpatory evidence, it will not be considered at the conference if the employer does not include this evidence in their response to the determination letter.
At the conference, the employer and employee will both be given the opportunity to speak and give their explanation of events, and the hearing officer will ask questions of both the employer and employee. If the employer is represented by the attorney, the employer’s attorney may also ask questions and offer explanations.
After the hearing, DOLI will make a final determination as to whether and for how much unpaid wages are owed. If it is determined unpaid wages are owed, then liquidated damages, 8% interest, and potentially a civil monetary fee will be assessed. Failure to pay the wages, liquidated damages, and interest due within 15 days of receipt of the final determination letter, DOLI will issue final orders finding the employer in violation of Virginia’s unpaid wage law, ordering the payment of wages, liquidated damages and interest, and assessing a potential civil monetary penalty in addition to attorney’s fees for collections. Virginia law further authorizes DOLI to record their final orders as judgment liens against the employer’s company.
Next steps if you received a DOLI unpaid wages complaint
DOLi unpaid wages investigations have significant pitfalls and penalties. DOLI rules, regulations, and procedures can also present complexities for employers trying to navigate the DOLI regulatory process. If you’re facing a DOLI unpaid wages Complaint, contact our office to speak with one of our Fairfax Civil Litigation Attorneys.
