The Virginia Supreme Court held that the state's wage theft statute does not cover commission-based pay, reversing a Court of Appeals decision and narrowing protections for workers paid on commission. Justice Stephen R. McCullough wrote the opinion in *Groundworks Operations, LLC v. Campbell*, issued December 30, 2025.
The case centered on whether Virginia Code § 40.1-29, the state's wage theft statute, applies to commission payments. The court concluded that the statutory language specifically covers wages and salaries but does not expressly extend to commissions.
The dispute arose from allegations by five former employees of JES Construction, L.L.C., a company that provides construction services including foundation repair, waterproofing, and crawl space remediation. Groundworks Operations, L.L.C., formerly JES Operations L.L.C., is a management company that provides services to affiliated companies, including JES Construction. The court referred to both defendants collectively as JES for simplicity.
Four of the plaintiffs worked as sales representatives, visiting prospective customers' homes to sell construction services. The fifth plaintiff was responsible for repairing installations and selling additional goods and services. JES would then perform the construction work pursuant to the contracts.
Four of the plaintiffs were paid exclusively on a commission basis, while one received commissions along with other compensation. Initially, JES did not have a written commission policy. The plaintiffs earned commissions equal to 10 percent of the gross price of their sales.
JES's payment structure involved splitting commission payments. The company paid half of the commission once a contract's three-day rescission period had expired and the contract became final. JES paid the remainder once the job was complete and the customer had made final payment.
The plaintiffs frequently experienced significant delays in receiving their full commission payments. These delays could result from various factors, including the engineering and permitting phases required for construction projects.
The case proceeded through multiple levels of Virginia's court system with conflicting results. The trial court initially held that Code § 40.1-29 did not apply to commissions, siding with the defendants. However, the Court of Appeals of Virginia disagreed and reversed that decision, extending the wage theft statute's protections to commission-based compensation.
The Virginia Supreme Court's analysis focused on statutory interpretation. The court examined the specific language of Code § 40.1-29, noting that while the statute explicitly mentions wages and salaries, it does not expressly reference commissions. The justices concluded that both the language of the statute and its broader context do not support an interpretation that would extend protections to commission payments.
"We conclude that the language of the statute and its context do not support an interpretation that extends its protections to commissions," the court wrote in reversing the Court of Appeals judgment.
This decision has significant implications for Virginia workers who receive commission-based compensation. Under the ruling, employees paid primarily or exclusively through commissions may not be able to pursue wage theft claims under Code § 40.1-29 for delayed or unpaid commission payments.
The ruling affects various industries where commission-based pay is common, including sales, real estate, insurance, and construction services. Workers in these sectors may need to rely on other legal remedies, such as breach of contract claims, to recover unpaid commissions.
The decision also highlights the importance of written commission policies and clear employment agreements. While JES initially operated without a written commission policy, such documentation could help prevent disputes and provide clearer legal frameworks for resolving payment issues.
For employers, the ruling provides clarity about the scope of Virginia's wage theft statute while potentially reducing their exposure to statutory wage theft claims from commission-based employees. However, employers may still face contract-based claims or other legal challenges related to unpaid commissions.
The Virginia Supreme Court's interpretation contrasts with the broader trend in some jurisdictions to expand worker protections. The decision emphasizes the court's adherence to statutory language and reluctance to extend legal protections beyond what legislators explicitly enacted.
Legal experts note that the ruling may prompt legislative action if lawmakers wish to extend wage theft protections to commission-based workers. Such changes would require explicit statutory language that includes commissions within the scope of protected compensation.
The case demonstrates the complex legal landscape surrounding different forms of employee compensation and highlights the distinctions courts draw between traditional wages and commission-based pay structures. For workers considering legal action over unpaid commissions, the decision underscores the importance of understanding which legal theories may apply to their specific compensation arrangements.