The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" means Article 2.1:1 of Chapter 3 (§ 40.1-33.6:1 et seq.) of Title 40.1 of the Code of Virginia.

"Commissioner" means the Commissioner of the Department of Labor and Industry or the Commissioner’s designee.

"Consecutive workdays" means consecutive days on which a particular employee would have ordinarily worked absent a qualifying reason for leave.

"Days" means calendar days unless otherwise specified.

"Department" means the Department of Labor and Industry.

"Fee-for-service basis" means a payment in which an employee is paid a pre-determined amount to perform a specific task.

"Health care professional" for purposes of § 40.1-33.6:3 of the Code of Virginia shall have the same meaning as "health care provider" as defined in § 60.2-800 of the Code of Virginia.

"Overtime exempt employee" means an employee who is exempt from overtime requirements under 29 USC § 213(a)(1) of the federal Fair Labor Standards Act (29 USC § 201 et seq.).

"Year" means the regular and consecutive 12-month period determined by the employer for the purpose of paid sick leave administration, as set forth in § 40.1-33.6:1 of the Code of Virginia.

More Generous Policies Encouraged. Nothing in the Act or this chapter shall prevent an employer from adopting or retaining a paid leave policy that is more generous than the one required by the Act.

Severability. As set forth in § 2.2-4004, provisions of these regulations or the application to any person or circumstances that are held invalid shall not affect the validity of other provisions or applications that can be given effect without the invalid provisions or applications. The provisions of this regulation are severable.

A. Covered Employers. An employer is covered by the Act if they meet the definition of employer set forth in § 40.1-33.6:1 of the Code of Virginia, subject to exceptions provided in § 40.1-33.6:4 of the Code of Virginia. All employees of a covered employer are covered by the Act, subject to §§ 40.1-33.6:2 and 40.1-33.6:4 of the Code of Virginia. The Act applies equally to full-time and part-time employees.

An employer shall not avoid coverage by misclassifying employees as independent contractors in violation of § 40.1-28.7:7 of the Code of Virginia.

An employer shall not divide employees among separate entities, worksites, payroll systems, or business units where the entities operate as an integrated employer for purposes of avoiding coverage under the Act.

B. Applicability date by employer size. This chapter will become applicable to covered employers as follows:

1. July 1, 2027: Applicable to employers of at least 50 employees.

2. January 1, 2028: Applicable to employers of at least 25 employees.

3. January 1, 2029: Applicable to employers of at least one employee.

To determine an employer’s size, an employer shall count all individuals that it employed for 20 or more calendar workweeks in the current or preceding calendar year within any state or territory of the United States or the District of Columbia. Employees who are employed outside these areas are not counted for purposes of determining employer coverage. Bona fide independent contractors who are properly classified under § 58.1-1900 of the Code of Virginia shall not be counted as employees for purposes of the Act.

A. Paid sick leave, generally. In accordance with § 40.1-33.6:2 of the Code of Virginia, employees shall accrue a minimum of one hour of paid sick leave for every 30 hours worked. Employers must permit employees to accrue at least 40 hours of paid sick leave per year. Employers may elect to allow employees to accrue more than 40 hours of paid sick leave per year.

B. Remote workers in Virginia. Because the definition of employee in §§ 40.1-33.6:1 and 40.1-2 covers remote employees, an employee who works remotely in the Commonwealth while customarily physically located in the Commonwealth shall accrue paid sick leave under the same terms as other employees under the Act.

C. Occasional work outside Virginia. An employee who customarily works in the Commonwealth, even if they occasionally work outside of Virginia, shall accrue paid sick leave for all hours that they work, including hours occasionally worked outside the Commonwealth.

D. Frontloading paid sick leave. An employer may elect to satisfy the accrual requirements of § 40.1-33.6:2 of the Code of Virginia by frontloading paid sick leave, which means providing employees at least 40 hours of paid sick leave or equivalent paid time off at the beginning of each year.

1. When an employer provides employees at least 40 hours of paid sick leave or equivalent time off at the beginning of each year, the employee shall have the right to use that leave immediately upon receiving it.

2. An employer that provides employees at least 40 hours of paid sick leave or equivalent paid time off at the beginning of each year is not required to keep records of the paid sick leave that the employee would have accrued during that designated year for employees.

3. For employees hired after the beginning of the year, an employer may (i) frontload 40 hours or more of paid sick leave or equivalent paid time off; or (ii) provide a prorated amount based on the remaining portion of the year, provided that the prorated amount is at least equal to the amount the employee would have accrued based on hours worked.

4. An employer that has provided paid sick leave or equivalent paid time off may not rescind or revoke unused hours of paid sick leave or equivalent paid time off.

E. Separation from employment. Pursuant to § 40.1-33.6:2 of the Code of Virginia, the Act does not require an employer to pay an employee for paid sick leave that was accrued, but not used, upon separation from employment, regardless of whether the employer elects to frontload paid sick leave or to allow employees to accrue paid sick leave.

F. Employees Exempt From Overtime Protections. As set forth in § 40.1-33.6:2 of the Code of Virginia, employees that are exempt from overtime protections under 29 USC § 213(a)(1), will be assumed to work 40 hours each workweek for purposes of paid sick leave accrual, unless their normal workweek is less than 40 hours. An overtime exempt employee whose workweek is less than 40 hours shall accrue paid sick leave as follows:

1. Overtime exempt employees shall accrue paid sick leave based on their actual hours worked if an employer is required to keep records of the employee’s hours worked under applicable law or if their employer otherwise keeps records of the employee’s hours worked.

2. An employer that is not required to and does not keep records showing hours worked by an overtime exempt employee whose normal workweek is less than 40 hours may establish a reasonable method of calculating the number of hours worked by the employee. A reasonable method for determining the number of hours worked by an employee for whom recording hours worked is not required by Virginia, federal, or local law includes: (i) the number of hours in a work schedule agreed upon by the employer and the employee; (ii) billing hours; or (iii) an established practice which provides a reasonable approximation of the hours actually worked by the employee.

G. Employees Who Are Paid on a Fee-For-Service Basis. Employees who are paid on a fee-for-service basis will accrue paid sick leave as follows:

1. Employees who are compensated on a fee-for-service basis shall accrue paid sick leave based on their actual hours worked when their employer is required to keep records of their hours worked under the Fair Labor Standards Act, 29 USC § 201 et seq. or other applicable law, or if their employer otherwise keeps records of the employee’s hours worked.

2. Employees who are compensated on a fee-for-service basis, but whose employers are not required to record their hours worked under applicable law, will accrue paid sick leave under the same terms as other employees exempt from overtime protections as set forth in § 40.1-33.62 of the Code of Virginia and subsection F of this section.

H. Carryover. Pursuant to § 40.1-33.6:2 of the Code of Virginia, employers must allow employees to carry-over unused paid sick leave that an employee has accrued but not used, to the following year.

1. An employee who carries unused paid sick leave into a new year shall continue to accrue paid sick leave under the Act, in addition to the amount carried over.

2. Employers are not required to allow employees to use more than 40 hours or more of paid sick leave in a single year, including when employees’ total carried over and accrued leave exceeds 40 hours. An employer may choose to set a higher limit, or to place no limit, on the amount of paid sick leave that employees may use in a single year. The employer’s limit on paid sick leave use must be included in a written policy provided to employees pursuant to 16VAC15-90-70 A 3 and consistently applied to all similarly-situated employees.

3. An employer that frontloads at least 40 hours of paid sick leave at the beginning of each year may satisfy the carryover requirement of § 40.1-33.6:2 of the Code of Virginia by providing employees with a total of 40 hours or more of paid sick leave at the beginning of a new year.

I. Changes in employment. Pursuant to § 40.1-33.6:2 of the Code of Virginia, an employee who remains employed by the same employer, but who changes positions, job descriptions, job duties, divisions, entities, or locations shall retain all accrued and unused paid sick leave or equivalent paid time off.

J. Rounding. Pursuant to § 40.1-33.6:2carryover requirement , employees shall accrue paid sick leave based on hours worked. Employers shall not round an employee’s hours worked or accrued leave in a manner that results in an employee receiving less paid sick leave than that required by law.

A. Form of paid sick leave requests. Employers shall provide paid sick leave upon proper request from an employee. An employee shall make a proper request for sick leave in one of the following ways:

1. An employee makes a proper request for paid sick leave when they make the request in writing or by electronic means, including by email, by text message, by submitting a paper or electronic form, or through an employer’s scheduling platform.

2. An employee makes a proper oral request for leave if: (i) the request is memorialized in writing and acknowledged by both the employee and a representative of the employer within 14 days of the request being made; or (ii) the employer allows employees to make oral requests for leave without memorializing such requests in writing.

B. Failure to request leave. If an employee fails to request paid sick leave or fails to make a proper request for paid sick leave, the employer is not required to compensate the employee for that portion of leave taken without a proper request.

C. Contents of paid sick leave requests. A proper request for sick leave is a request that provides sufficient information to make a reasonable employer aware that the employee is seeking paid sick leave, such as an employee’s statement that they "need the morning off to go to the doctor." An employee that requests paid sick leave is not required to expressly assert rights under the Act, mention the Act, or use any specialized terms of art for the request to be effective. An employer may ask an employee to provide an estimated amount of paid sick leave needed.

D. Notice of leave. An employer may require employees to provide advance notice, not to exceed seven days of the use of paid sick leave that can be foreseen more than seven days in advance. An employee may voluntarily choose to provide their employer with more advanced notice than required by the employer’s policy. An employee makes a good faith effort to provide advance notice of leave when they comply with an employer’s usual and customary policy for providing notice. Where it is not practicable for an employee to provide advance notice, an employee makes a good faith effort when the employee provides notice of the need for leave as soon as practicable.

E. Leave increments. Pursuant to § 40.1-33.6:3 of the Code of Virginia, an employer may require employees seeking paid sick leave to comply with a generally-applicable written policy establishing increments for employee leave. An employer may not require employees to use paid sick leave in increments greater than four hours.

1. An employer may not require employees to take paid sick leave under this Act in greater increments than the employer requires for other forms of employer-provided paid or unpaid leave.

2. A written employer policy that establishes increments of leave larger than one hour must include a policy that would apply when an employee needs to leave work to take leave for less than the employer required increment due to an urgent and unforeseeable need for paid sick leave, and the time remaining in the employee’s scheduled work day is less than the employer’s required increment of leave. An employer may not prohibit employees from leaving work because of an urgent and unforeseeable need for sick leave, including when the employee has less than four hours remaining in their scheduled work hours.

F. Medical documentation. Pursuant to § 40.1-33.6:3 A 1 and A 2 of the Code of Virginia an employee may use paid sick leave for the employee or their family member’s visit to a health care provider to obtain documentation from the health care provider or the provider’s designee.

G. Family members. Pursuant to § 40.1-33.6:1 of the Code of Virginia, a family member for purposes of this chapter includes a child, grandchild, grandparent, parent, legal guardian, sibling, spouse, or domestic partner of an employee, including those with step, foster, adopted, or in loco parent is relationships. A family member includes a person who (i) either regularly resides in the employee's home or who has a relationship with the employee that creates an expectation that the employee care for such individual; and (ii) who depends on the employee for care.

1. An employer may implement a written policy that allows employees to designate a list of family members for whom an employee may wish to use paid sick leave, in addition to a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner of an employee, including those with step, foster, or adopted relationships. An employer that does so shall:

a. Permit employees to designate at least two individuals who (i) regularly resides in the employee’s home or who has a relationship with the employee that creates an expectation that the employee care for such individual; and (ii) who depends on the employee for care;

b. Allow employees to update the list on an annual basis or more frequent basis, as well as anytime that the employee incurs a major life change;

c. Require employees to designate those individuals in writing; and

d. Allow employees to use paid sick leave to care for a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner of an employee, including step, foster, or adopted relationships, none of whom must be included on such a pre-designated list.

2. If an employer does not have a written policy as outlined in subdivision H 1 of this section, an employee may take paid sick leave to care for any person who meets the statutory definition of a family member under § 60.2-800 of the Code of Virginia. The following, non-dispositive factors are relevant to whether a person who is not a child, grandchild, grandparent, parent, sibling, spouse, or domestic partner of an employee, including those with step, foster, or adopted relationships, satisfies the definition of a family member:

a. Emergency contact designations;

b. The nature of the relationship;

c. The prior provision of care, such as prior presence at health- or safety- related appointments;

d. Power of Attorney designations;

e. Life insurance, retirement account, and other beneficiary designations;

f. Shared financial responsibility, including shared leases, common ownership of real or personal property, and joint liability for bills; and

g. Cohabitation and the duration thereof. However, an individual who simply resides in an employee’s home with no expectation that the employee care for the individual is not a family member under § 40.1-33.6:1 of the Code of Virginia.

A. Regular rate of pay. As provided in § 40.1-33.6:1 of the Code of Virginia, an employer shall compensate an employee for paid sick leave at the regular rate of pay owed by the employer to the employee, as established by § 40.1-29.3 of the Code of Virginia, commonly referred to as the Virginia Overtime Wage Act (VOWA).

1. Notwithstanding any other provision of law, an employee’s regular rate shall not be less than the minimum wage amount set forth in § 40.1-28.10 of the Code of Virginia.

2. As set forth in § 40.1-33.6:1 of the Code of Virginia, a tipped employee’s regular rate includes the amount of any tip credit claimed by their employer per hour, the reasonable cost of or fair value of any facilities furnished to the employee by the employer, and the cash wages including commissions and certain bonuses paid by the employer. An employer shall not reduce an employee's paid sick leave pay rate by any tip credit or the fair value of any facilities furnished to the employee.

3. When an employee uses earned sick leave during scheduled hours that would have been paid at an overtime rate (as hours in which a worker was scheduled to work over 40 hours in a single workweek), the employer is required to pay that employee the regular rate of pay, rather than the overtime rate of pay.

B. Payment due date. An employer shall compensate an employee for paid sick leave no later than the regular payday for the pay period in which the leave was used. If an employer requires verification of an absence pursuant to § 40.1-33.6:3 H of the Code of Virginia, the employer shall compensate the employee no later than the regular payday for the pay period in which the employee provides the required verification.

C. Multiple rates of pay. If an employee works at multiple rates of pay, such as because of shift differentials or because the employee performs two different types of work for an employer, the employee’s regular rate shall be the weighted average of such rates as set forth in 29 CFR 778.115.

D. Salaried workers. For employees who are paid a salary, no additional pay is due when the employee’s use of paid sick leave results in no reduction in the employee’s regular salary during the pay period in which the paid sick leave is used.

E. Indeterminate chifts. An employee who requests paid sick leave for a shift of indeterminate duration (such as a shift that is defined by business needs, rather than a previously specified number of hours), shall be paid based on the greater of: (i) the hours worked by the employee in the most recent substantially similar shift of an indeterminate length; or (ii) the number of hours worked by a similarly situated employee, if any, during the same shift.

A. Written policy. Employers shall adopt a written paid sick leave policy that meets or exceeds the minimum requirements of the Act. In addition to the notice requirements set forth in 16VAC15-90-90, an employer shall provide a copy of the written policy to employees whenever the policy is changed, altered, or modified. The written paid sick leave policy must include:

1. The accrual method used, including the rate of accrual, which must meet the minimum requirements of the Act and this chapter;

2. The employer’s definition of a "year" for purposes of leave administration, as required by 16VAC15-90-10;

3. Any annual accrual or use limitations established by the employer and consistent with the Act and this chapter, as required by 16VAC15-90-40 H. Accrual or use limitations shall not be less than 40 hours per year;

4. Procedures for requesting leave, which shall be consistent with the requirements of 16VAC15-90-50 A;

5. Any requirement that employees take leave in specific increments of time established by the employer, as required by 16VAC15-90-50 E. Any requirements related to leave increments must be consistent with the Act and this chapter;

6. A statement of employees’ anti-retaliation and anti-interference protections under the Act; and

7. A process for employees to obtain information about their paid sick leave balances.

B. Failure to provide a written policy. An employer shall not deny paid sick leave to or discipline an employee based on the employee’s failure to comply with a paid sick leave policy that was not provided in writing as required by 16VAC15-90-90.

C. Documentation requirements. For paid sick leave of three or more consecutive workdays, an employer’s written paid sick leave policy may require reasonable documentation that the paid sick leave has been used for a purpose set forth in § 40.1-33.6:3 H of the Code of Virginia. Any documentation requirements must be included in the employer’s paid sick leave policy and must be consistent with § 40.1-33.6:3 H of the Code of Virginia.

D. Employer designation of year. An employer’s written paid sick leave policy shall designate a “year” that the employer will use for purposes of paid sick leave administration. Pursuant to § 40.1-33.6:1 of the Code of Virginia, a designated year must be a regular and consecutive 12-month period for purposes of administering paid sick leave, such as a calendar year, fiscal year, or benefits year. The designated year must be consistently applied to all similarly-situated employees.

1. For any employer that fails to designate a “year” in their written policy, the “year” is the calendar year.

2. An employer may change its designated year only if: (i) the change is prospective; (ii) the change is not a willful attempt to avoid accrual, carryover, or use of paid sick leave; (iii) employees receive written notice at least 30 calendar days prior to the change; and (iv) employees retain all paid sick leave they have accrued but not used.

E. Loaned leave. An employee who accrues paid sick leave based on hours worked may request that their employer loan the employee paid sick leave that the employee has not yet accrued but expects to accrue in the future. An employer may voluntarily agree to loan an employee unaccrued leave. The terms of any loan shall be stated in a written agreement signed by the employee to confirm that the employee understands the terms of using loaned leave.

1. As a condition of loaning an employee paid sick leave, an employer may require that an employee consent to repay the employer through deductions from the employee’s final paycheck if that employee separates from employment before accruing the loaned leave.

2. An employer’s decision not to loan an employee unaccrued leave shall not constitute retaliation or interference under § 40.1-33.6:6 of the Code of Virginia.

A. Retaliation. An employer that takes an adverse action against an individual because of that individual’s protected activity commits unlawful retaliation under the Act.

1. "Protected activity" means taking, attempting to take, or being about to take any of the actions set forth in § 40.1-33.6:6 of the Code of Virginia. Protected activity includes being perceived by an employer or other person as taking an action set forth in § 40.1-33.6:6 of the Code of Virginia, such as filing a complaint with the Department of Labor and Industry.

2. “Adverse action” means any action (including an affirmative act, omission, or statement) that would harm an employee or which could deter a reasonable person from engaging in protected activity, including the adverse actions set forth in § 40.1-33.6:6 of the Code of Virginia.

B. Interference. An employer commits unlawful interference under the Act if that employer takes an action (including an affirmative act, omission, or statement) that would interfere with a reasonable person’s rights or protected activity under the Act or its implementing regulation. Interference can include:

1. Refusing to authorize paid sick leave that an employee is authorized to use under this Act;

2. Discouraging an employee from using paid sick leave;

3. Failing to store and maintain the confidentiality of sensitive information, such as information about an employee or their family member’s health conditions, that the employer receives in relation to a request for paid sick leave;

4. Providing false or misleading information that has the effect of interfering with an employee’s ability to access paid sick leave;

5. Requiring an employee to search for or find a replacement worker to cover the hours during which the employee is using paid sick leave, or requiring an employee to work an alternative shift to make up for the use of paid sick leave, in violation of § 40.1-33.6:3 of the Code of Virginia;

6. Inducing or attempting to induct an individual to prospectively waive a right under the Act or its implementing regulation; or

7. Making any communications or taking any action pertaining to an individual’s immigration status that would deter a reasonable person from exercising their rights under the Act.

A. Individual notice. Employers shall provide each employee written notice describing their rights under this Act upon hiring, no later than five business days after an employee begins work. This notice must be provided in a form that an employee can keep or save.

1. In addition to the requirements set forth in § 40.1-33.6:5 of the Code of Virginia, the notice must include: (i) a statement of employee’s right to take paid sick leave under the Act and the terms under which such benefits can be used; (ii) a statement of employees’ anti-retaliation and anti-interference rights; and (iii) a copy of the employer’s written paid sick leave policy required by 16VAC15-90-70 A.

2. An employer may satisfy this section by providing employees: (i) a copy of a program notice developed by the department; and (ii) a copy of the employer’s written paid sick leave policy required by 16VAC15-90-70 A.

3. An employer must also provide employees with a new copy of the notice and the employer’s written paid sick leave policy upon the employee's request. Employees may make such requests no more than once per month, except they may make an additional request when a need for paid sick leave arises.

4. An employer must also provide employees with a copy of this notice upon transfer to Virginia, no later than five business days after an employee begins work in Virginia.

B. Posters. An employer shall maintain and display a notice provided by the Department in a conspicuous place accessible to employees providing information about employees’ rights under this Act. The Department will publish a poster in English and Spanish. An employer may satisfy the requirements of this section by posting the program notice electronically, such as on an employer’s intranet, employee portal, or website, if all employees customarily receive information from the employer via electronic means and all employees have readily available access to the electronic posting at all times.

C. Recordkeeping. An employer must retain records for a three-year period documenting each employee’s hours worked, hours of paid sick leave accrued, and hours of paid sick leave used, unless the employer falls under one of the following exceptions:

1. An employer that elects to frontload leave as provided in 16VAC15-90-40 D is not required to maintain records of hours worked, provided that the employer retain records documenting its practice of frontloading leave and the amount of paid sick leave provided. If the employer elects to provide newly-hired employees with a prorated amount of paid sick leave, as provided in 16VAC15-90-40 D 3, the employer must keep records showing the prorated amount of paid sick leave provided to the employee.

2. An employer is not required to maintain records of hours worked for employees who are exempt from overtime requirements under 29 USC § 213(a)(1), provided that the employees accrue paid sick leave as set forth in § 40.1-33.6:2 of the Code of Virginia.

3. An employer is not required to maintain records of hours worked for employees who are covered by 29 CFR 825.801, provided that the employee accrues paid sick leave as though they worked 40 hours in each workweek.

4. Nothing in this regulation alters an employer’s recordkeeping requirements under other applicable laws.

D. Retention of records. An employer who is aware of a pending complaint, investigation, litigation, audit, or other enforcement action shall retain all records relevant to the action until final resolution.

E. Leave balance on request. Upon an employee’s request, an employer shall provide, in writing or electronically, documents sufficient to show the employee’s then-current amount of paid sick leave accrued, paid sick leave used, and the paid sick leave balance remaining for use.

1. An employer shall provide this information within three business days of the request. An employer may not charge an employee a fee for providing paid sick leave records.

2. Employees may make such requests no more than once per month, except they may make an additional request when a need for paid sick leave arises.

3. Employers may choose a reasonable system for fulfilling such requests, including listing the information on each pay stub; using an electronic system where employees can access their own paid sick leave information; or providing information in a letter or electronic communication.

A. Investigations. Upon receipt of a complaint from an employee or third-party, or at the commissioner’s discretion, the commissioner may investigate any alleged violations of the Act. A complaint must be filed within the statute of limitations set by § 40.1-33.6:7 of the Code of Virginia.

B. Formal determination of violation. When the commissioner determines that a violation has occurred, and a case is not otherwise resolved through mediation or other means, the commissioner will issue a formal determination letter.

1. The employer may request an informal conference with the Commissioner within 15 days of receipt of the formal determination letter regarding the findings.

2. The employer’s request for an informal conference shall be in writing and include the specific basis for the employer’s contestation with any additional documentary evidence the employer wishes the commissioner to consider.

3. The informal conference will result in a decision of the commissioner.

C. Resolution and disposition. When the commissioner issues a formal determination or decision of violation, the employer may resolve the investigation by taking all corrective action determined appropriate by the commissioner, including paying all back wages, damages, and penalties owed. To prevent future violations, the Commissioner may require an employer to enter into a compliance agreement as a condition of resolution. Proof of payment or action must be submitted to the Commissioner within 15 days of receipt of the determination. In the event that payment and corrective action cannot reasonably be taken within 15 days, the commissioner may approve an extended timeline for an employer to implement all corrective actions and provide proof that the corrective actions were completed. Should the employer pay all penalties and take all corrective action within the deadline, the investigation shall be closed.

D. Final orders. When the commissioner issues a formal determination or decision of violation and the employer refuses to comply or otherwise fails to respond within 15 days of receipt, the decision of the commissioner shall be final. The commissioner may enter a final order against the employer in the appropriate circuit court, refer the matter to the Attorney General, or bring a civil action to enforce the Act.

E. No administrative exhaustion required. An employee is not required to pursue administrative remedies through the commissioner prior to initiating a lawsuit seeking relief for a violation of the Act.

F. Civil monetary penalty assessments. Civil penalties will be determined in accordance with § 40.1-33.6:7 of the Code of Virginia. In determining a civil monetary penalty, the Commissioner and the Attorney General shall consider the gravity of the violation, the size of the business, and other factors deemed appropriate by the Commissioner.

1. Pursuant to § 40.1-33.6:7 D of the Code of Virginia, the commissioner and the Attorney General will not assess civil monetary penalties or bring a civil action against an employer that, within 15 days of receiving written notice of the alleged violation, corrects the violation by providing affected employees all relief owed to them under the Act and by correcting the employer policies and practices that led to the violation. To ensure that an employer corrects the violation, the Commissioner and the Attorney General may require the employer to enter into a compliance agreement before reducing civil monetary penalties.

2. An employer that commits a repeat violation of the Act shall be assessed a civil penalty under § 40.1-33.6:7 D of the Code of Virginia. Subdivision 1 of this subsection shall not apply to an employer that repeatedly violates the Act because of the employer’s prior failure to come into compliance within 15 days.

3. For purposes of this section, an employer receives written notice of an alleged violation when it receives a notice from the commissioner or Attorney General, a complaint, a demand letter, or a notice from a labor organization or other interested third party containing a description of the alleged violation.

G. Preclusion. In no civil action brought under the Act shall an employee be awarded an amount already recovered on their behalf by the Commissioner or the Attorney General for the same violation. In no administrative action or court action brought under this section shall the Commissioner or Attorney General be awarded an amount already recovered by an employee in a court action for the same violation.