Virginia Law

A. If a portion of the remuneration paid by an employer to his employee for services performed during a payroll period of not more than 31 consecutive days constitutes "wages" under 23VAC10-140-10 (that is, remuneration for services from which tax is required to be withheld), and the remainder does not constitute "wages," all the remuneration paid the employee for services performed during such period shall for purposes of withholding be treated alike, that is, either all included as wages or all excluded. The time during which the employee performs services, the remuneration of which constitutes wages under 23VAC10-140-10, and the time during which the employee performs services, the remuneration for which under such section does not constitute wages, determine whether all the remuneration for services performed during the payroll period shall be deemed to be included or excluded.

B. If ½ or more of the employee's time in the employ of a particular employer in a payroll period is spent in performing services the remuneration for which constitutes wages, then all the remuneration paid the employee for services performed in that payroll period shall be deemed to be wages.

C. If less than ½ of the employee's time in the employ of a particular employer in a payroll period is spent in performing services the remuneration for which constitutes wages, then none of the remuneration paid the employee for services performed in that payroll period shall be deemed to be wages.

D. The application of the provisions of subsections A, B, and C may be illustrated by the following examples:

Example 1: Employer B, who operates a store and a farm, employs A to perform services in connection with both operations. The remuneration paid A for services on the farm is remuneration for agricultural labor and is not subject to withholding, and the remuneration for services performed in the store constitutes wages and is subject to withholding. Employee A is paid on a monthly basis. During a particular month, A works 120 hours on the farm and 80 hours in the store. None of the remuneration paid by B to A for services performed during the month is deemed to be wages, because the remuneration paid for less than ½ of the services performed during the month constitutes wages. During another month, A works 75 hours on the farm and 120 hours in the store. All of the remuneration paid by B to A for services performed during the month is deemed to be wages because the remuneration paid for ½ or more of the services performed during the month constitutes wages.

Example 2: Employee C is employed as a maid by D, a physician, whose home and office are located in the same building. The remuneration paid C for services in the home is remuneration for domestic service and is not subject to withholding, and the remuneration paid for her services in the office constitutes wages and is subject to withholding. C is paid on a weekly basis. During a particular week C works 20 hours in the home and 20 hours in the office. All of the remuneration paid [by] D to C for services performed during that week is deemed to be wages, because the remuneration paid for ½ or more of the services performed during the week constitutes wages. During another week C works 22 hours in the home and 15 hours in the office. None of the remuneration paid by D to C for services performed during that week is deemed to be wages, because the remuneration paid for less than ½ of the services performed during the week constitutes wages.

E. The rules set forth in this section do not apply (1) with respect to any remuneration paid for services performed by an employee for his employer if the periods for which remuneration is paid by the employer vary to the extent that there is no period that constitutes a payroll period within the meaning of 23VAC10-140-10, or (2) with respect to any remuneration paid for services performed by an employee for his employer if the payroll period for which remuneration is paid exceeds 31 consecutive days. In any such case withholding is required with respect to that portion of such remuneration which constitutes wages.