732 S.E.2d 733
Va. Ct. App.2012Background
- Mar filed a wage-claim with DOLI on Sept 3, 2010 for work Feb 1–26, 2010 with Velasquez Constructors.
- Mar signed a form authorizing DOLI to investigate and enforce §40.1‑29.
- Mar requested VAPA procedures (subpoenas, informal fact-finding conference) if employer disputed the claim.
- DOLI acknowledged investigation and notified Velasquez; Velasquez did not respond; Mar provided no documentation.
- DOLI closed the wage-claim on Dec 28, 2010, finding no verifiable employee relationship; Mar petitioned circuit court for review and for VAPA procedures to apply.
- Circuit court dismissed Mar’s appeal, holding VAPA Article 3 does not apply because Wage Payment Act provides due process; this appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does VAPA Article 3 apply to the Wage Payment Act wage claim? | Mar argues VAPA supplements Wage Payment Act. | DOLI contends Wage Payment Act provides due process; VAPA not applicable. | No; Article 3 does not apply. |
| Does the Wage Payment Act provide due process sufficient to foreclose VAPA Article 3? | Mar contends VAPA is needed for due process. | Act itself provides notice and informal conference; VAPA not required. | Wage Payment Act provides sufficient due process; VAPA not governing. |
| Would applying Article 3 burden DOLI or conflict with the Wage Payment Act? | Mar argues Article 3 complements Wage Payment Act. | No conflict or burden justification; discretion under Act remains. | No requirement to apply Article 3; VAPA not imposed. |
Key Cases Cited
- Nicely, 12 Va. App. 1051 (1991) (VAPA governs unless basic law provides its own due process or is exempted)
- Virginia Bd. of Med. v. Va. Physical Therapy Ass’n, 13 Va. App. 458 (1991) (VAPA is a default, catch-all source of due process unless exempted or provided for)
- Pallone v. Marshall Legacy Inst., 97 F. Supp. 2d 742 (E.D. Va. 2000) (Wage Payment Act enforcement discretionary by Commissioner; not a private remedy)
- Etheridge v. Medical Center Hospitals, 237 Va. 87 (1989) (Procedural due process safeguards; general principle of due process)
- Ours Properties, Inc. v. Ley, 198 Va. 848 (1957) (Public officials presumed to act lawfully; due process satisfied on review)