Richmond —

Six changes to Virginia employment law reach restaurants between now and 2028. Two of them are already in force and are not being talked about enough.

The wage floor, and where it goes

The Virginia minimum wage is $12.77 an hour, effective January 1, 2026. HB 1 and SB 1, Chapters 350 and 351, wrote the next steps into § 40.1-28.10:

Effective	Rate
Now	$12.77
January 1, 2027	$13.75
January 1, 2028	$15.00
January 1, 2029 onward	Indexed to CPI-U, never downward

The tipped cash wage stays at the federal $2.13. Wages plus tips must reach $12.77, and if they do not, the employer owes the difference. That makes the maximum Virginia tip credit $10.64, and it grows with every step above.

There is an exemption most operators do not know about. Under § 40.1-28.9, anyone under 16, and any full-time student under 18 working 20 hours a week or less, is outside the Virginia minimum wage entirely. Federal $7.25 still applies. That survived the 2026 amendments untouched.

Tips became wages, with treble damages attached

HB 238, Chapter 1040, effective July 1, added a single word to § 40.1-29 that changes the exposure: the definition of “wages” now expressly includes tips. The Senate version, SB 644, failed.

Virginia’s wage payment statute already carried real teeth. An employee can sue individually or as a collective action on the FLSA model, without exhausting any administrative remedy. Standard relief is the wages owed plus an equal amount in liquidated damages plus 8% prejudgment interest plus attorney fees. For a knowing violation the court “shall award” triple the wages due plus fees. Not may. Shall.

“Knowingly” is defined to include deliberate ignorance and reckless disregard, and the statute says plainly that proving it “shall not require proof of specific intent to defraud.”

Criminal exposure runs alongside: willful failure to pay wages is a Class 1 misdemeanor under $10,000, and a Class 6 felony at $10,000 or more, aggregated across all employees.

The one piece of relief, and it is worth knowing precisely. For actions commenced on or after July 1, 2026, an employer who acted in good faith with reasonable grounds avoids liquidated and treble damages, but only if it cures within 14 days of being notified by paying all wages unlawfully withheld. Fourteen days. That window is the single most actionable item in this year’s employment law for a restaurant.

Also new: paystubs must be retained three years, and the Attorney General now has independent enforcement authority.

Most of your non-competes stopped working

This is the change that will surprise the most operators. Virginia’s ban on non-competes with “low-wage employees” no longer turns mainly on a salary threshold. The definition now includes, regardless of earnings, any employee entitled to overtime under 29 U.S.C. § 207.

In a restaurant that is nearly everyone: line cooks, servers, bartenders, shift leads, and a good many assistant managers who are paid hourly or fail the duties test. An employer may not “enter into, enforce, or threaten to enforce” a non-compete with any of them. Civil penalty: $10,000 per violation. Employees get a two-year private action, and courts may void the covenant and award liquidated damages, lost compensation and fees.

SB 170, Chapter 883, effective July 1, 2026, adds a second rule reaching every employee at any wage level: a non-compete is unenforceable against anyone discharged without severance or other monetary payment, unless the discharge was for cause. The severance has to be disclosed when the covenant is signed.

And there is a posting requirement almost nobody has complied with. Employers must post the section, or a DOLI-approved summary, with their other required notices. First violation is a written warning, second up to $250, third and beyond up to $1,000 each.

Tip pooling: the 80/20 rule is gone, and that cuts both ways

The Department of Labor’s 2021 dual jobs rule, the one that denied the tip credit for non-tip-producing work above 20% of a workweek or any continuous 30 minutes, was vacated by the Fifth Circuit in August 2024 and formally removed from the regulations effective December 17, 2024. The pre-2021 dual jobs standard is back.

What governs now is occupation, not percentage. A server who cleans tables, makes coffee, toasts bread and occasionally washes glasses is still a tipped employee. A server who spends a shift on maintenance is working a second, untipped occupation for that time.

There is no 80/20 safe harbor any more. There is also no 30-minute rule. Operators who built timekeeping around it are not required to keep it, though abandoning task tracking entirely is not free of risk.

On pooling itself, the federal rules are unchanged and strict. Managers and supervisors may never keep employees’ tips, whether or not a tip credit is taken. If the employer takes the tip credit, the pool is limited to customarily tipped occupations, and back of house cannot be in it. Back of house can be included only if the employer takes no tip credit and pays every participant the full direct cash minimum wage, which in Virginia means $12.77, not $7.25.

Child labor: the penalties went up and almost nobody noticed

Since 2024, § 40.1-113 sets a civil penalty of not less than $500 and not more than $2,500 for each violation, and up to $25,000 where a child is seriously injured or killed. The $500 floor is statutory; DOLI cannot go below it. DOLI’s own published guidance document still shows the old $1,000 and $10,000 figures. The statute controls.

Federal penalties run far higher: $16,035 per child labor violation, $72,876 where it causes serious injury or death.

The case that should be on every operator’s wall is JM Burke LLC, a Jersey Mike’s franchisee with locations in Ashburn, South Riding, Springfield and Sterling. Fourteen minors operated power-driven meat slicers. Civil money penalties: $108,161. Meat slicers are the single most common child labor violation in sandwich and deli operations, and 16- and 17-year-olds are barred from them too, not just 14- and 15-year-olds.

Two Virginia-specific rules worth knowing: no child may work more than five hours continuously without a 30-minute break (the FLSA has no meal break mandate at all), and under-16s may not do curb service at a restaurant or room service in a hotel.

A new exception arrived this year. SB 10, approved April 6, allows minors 16 and over in registered apprenticeship programs, culinary arts expressly included, to work in otherwise-prohibited occupations. That is a real opening for kitchen workforce pipelines.

What is coming

Paid sick leave, July 1, 2027. HB 5 and SB 199, Chapters 1128 and 1129. One hour accrued per 30 hours worked, capped at 40 hours a year, accruing from the first day of employment, and carried over into the following year. Employers may front-load 40 hours instead. On a high-turnover, high-headcount workforce this is the largest cost item on the horizon.

Salary history, already in force since July 1. HB 636 and SB 215, Chapters 1063 and 996, bar an employer from seeking an applicant’s wage or salary history. Two further bills on the same subject, HB 962 and HB 1164, failed.

The Human Rights Act now covers employers with 5 employees, down from 15, under SB 637 and HB 925, Chapters 950 and 1119. That sweeps in a large number of independent restaurants that were previously outside it entirely, and the window to file a charge went from 300 days to two years.

Virginia still has no predictive scheduling law. None was enacted this year and none is pending.

What the enforcement record actually shows

Every publicly reported Virginia restaurant wage case in recent years turned on back of house, not tips. Chicanos Cocina Bar and Grill in Richmond paid $172,392 for 21 workers in July 2024, with salaried kitchen staff denied overtime. Food for Thought in Williamsburg paid $205,180 plus $50,034 in penalties for 62 workers, for paying kitchen staff straight time on overtime hours.

The recurring failure is a flat salary or straight hourly rate on a 50-hour kitchen week. The one tipped finding in that set was an overtime calculation error: computing the overtime premium on the $2.13 cash wage instead of the full minimum wage.

DOLI does not publish case-level enforcement data, so the absence of 2025 and 2026 Virginia restaurant cases in the public record is an absence of published releases, not evidence that nothing happened.