When “Earned” Doesn’t Mean “Protected”: The Human Stakes

🏠 Picture yourself driving to a stranger’s house on a weekday morning, presenting a foundation repair plan, closing the sale, and then waiting months to see your paycheck. That was the daily reality for four salespeople at JES Construction, a Virginia company specializing in foundation repair, waterproofing, and crawl space remediation. A fifth employee handled installation work and also sold additional services. All five were paid entirely or substantially on commission: ten percent of the gross price of every sale they made.

They earned their money the old-fashioned way. They knocked on doors, sold the work, and handed the company its revenue. Then they left JES. And the company refused to cut the final checks.

The workers filed suit under Virginia’s wage theft statute, Code Section 40.1-29, arguing that refusing to pay commissions owed to departing employees was exactly the kind of corporate misconduct the law was designed to stop. They were right about the harm. But on December 30, 2025, the Supreme Court of Virginia ruled against them, concluding that the legislature had written a wage theft law that, by its plain text, does not protect commission-based workers at all.

Inside the Allegations: What the Workers Said Happened

According to the complaint, JES Construction initially had no written commission policy at all. The workers operated under an informal understanding: earn ten percent on every closed deal. JES structured its payment schedule in two installments. Half arrived once the customer’s three-day contract rescission window closed. The second half arrived only after the job was fully completed and the customer paid their final invoice.

That structure created long, unpredictable gaps between a salesperson closing a deal and receiving full payment. Engineering assessments, permitting delays, and construction schedules all stretched that window further. Workers could wait months for payment on sales they had already closed.

Four of the five plaintiffs later signed an agreement with JES stipulating that commissions would be paid out up to 14 days after their employment ended, with nothing owed after that cutoff. Two employees never signed that agreement. When all five departed the company, they alleged that JES refused to pay commissions on contracts they had already closed and which were already locked in by completed customer agreements.

Three of the five plaintiffs also argued that the agreement JES pressured them to sign violated a specific protection in Virginia’s wage theft statute: the prohibition on requiring employees to forfeit earned wages as a condition of employment. The workers argued that a 14-day cutoff imposed as a condition of continued employment was precisely such a forfeiture clause.

Legal Minimalism: How a Missing Word Became a Corporate Shield

The Virginia wage theft statute, Code Section 40.1-29, uses the words “wages” and “salaries” throughout. It does not use the word “commissions.” That absence became the decisive fact in the case.

JES filed a demurrer, the legal equivalent of saying “even if everything you allege is true, there is no valid legal claim here.” The trial court agreed, ruling that the statute did not cover commissions. The Court of Appeals reversed, finding that commissions fall within the ordinary meaning of wages. The Supreme Court of Virginia then reversed again, siding with the employer.

The majority’s analysis was straightforward and, on its face, technically coherent. Dictionaries generally define wages as compensation for hours worked or quantity produced. Commissions are a percentage of sales. In ordinary speech, the two concepts are distinct. The legislature knows how to write the word “commissions” when it means to include them: Virginia has at least six other statutes that specifically list wages and commissions side by side, including laws governing unemployment compensation, child support, and consumer finance regulation.

Because the legislature repeatedly demonstrated it could include commissions when it wanted to, the court read the absence of the word from the wage theft statute as intentional. The workers’ argument that the statute should be construed broadly to remedy the harm it was designed to prevent ran into a countervailing rule: the wage theft law also contains criminal penalties, and criminal statutes must be read narrowly. The majority declared these canons of construction “offsetting” and resolved the tie in favor of the employer.

The Dissent the Workers Needed

Two justices flatly disagreed. Chief Justice Goodwyn and Justice Mann argued that the plain and ordinary meaning of “wages” has included commissions in legal dictionaries since the nineteenth century. They pointed to Black’s Law Dictionary defining wages to include “salaries, commissions” and Webster’s Third New International Dictionary noting that wages often include bonuses and commissions. They cited Virginia’s own 1889 precedent defining wages as “compensation given to a hired person for his or her services.”

The dissenters argued that when four out of five workers are paid exclusively by commission, those commissions are not a bonus or reward on top of other compensation. They are the compensation. Denying them protection under a wage theft law, the dissent argued, produces an absurd result the legislature never intended.

Regulatory Gaps and How Corporate Employers Exploit Them

Virginia’s wage theft statute is a relatively modern protection. It carries real teeth: an employer who knowingly refuses to pay wages can face triple damages, plus attorney fees and costs. A willful refusal to pay more than $10,000 constitutes a Class 6 felony. These penalties exist because wage theft is genuinely destructive, and because employers historically held the leverage to delay or deny payment with few consequences.

But the statute’s drafters appear to have written it primarily with hourly and salaried workers in mind. Sales workers, gig economy contractors, real estate agents, insurance brokers, and millions of other commission-dependent workers occupy a legal gray zone that companies with experienced labor counsel know how to navigate.

Groundworks Operations and JES did not create this gap. They simply benefited from it. That is precisely how regulatory minimalism operates in practice: the law protects the workers the drafters were thinking about, and everyone else is left to pursue slower, more expensive, and less certain legal remedies.

Exploitation of Workers: Commission-Only Employees and the Protection Gap

Commission-only compensation structures are among the most common arrangements in sales, real estate, financial services, and home improvement industries. Workers in these roles carry enormous risk: no base pay, no guaranteed income, and complete dependence on completed sales cycles that can span weeks or months.

JES’s payment structure made that risk even starker. A salesperson closed a deal. The commission timer started. But the full payout required the engineering phase to clear, the permits to come through, the construction to finish, and the customer to submit a final payment. Workers had no control over any of those steps. They simply waited.

When they left the company for whatever reason, a strict 14-day cutoff erased any commissions tied to deals still in process. Under the terms JES required four of the five workers to sign, every contract that hadn’t fully completed within two weeks of a worker’s departure generated zero compensation for that worker, regardless of how much work they had put into closing it.

💼 This is the structural reality of commission-only work: the employer captures the full value of the sale while retaining the contractual tools to deny the worker their share if the timing doesn’t align. Virginia’s wage theft law, as written, offers no protection against that specific form of economic exploitation.

Profit-Maximization at All Costs: The Corporate Calculus

Groundworks Operations is not a small, struggling contractor. JES Construction, the operating subsidiary, provides foundation repair, waterproofing, and crawl space remediation services across its market. Its parent structure, with Groundworks Operations serving as the management company overseeing affiliated companies including JES Construction, is the kind of layered corporate architecture common in private-equity-backed home services companies.

When a sales-driven company structures its entire compensation model around commissions and then builds in contractual cutoffs that eliminate payout obligations when workers depart, the financial incentive is obvious. Workers who close deals and then resign or are terminated before jobs complete generate revenue for the company with no corresponding payout. The 14-day post-termination window that JES required workers to sign was not a generous accommodation. It was a liability cap.

The company’s legal strategy reinforced the financial one. Rather than dispute the amounts owed or contest that commissions had been earned, JES argued at the threshold that no legal protection existed at all. That argument succeeded. The workers’ substantive claims, including whether the 14-day forfeiture clause was enforceable, never received a ruling on their merits.

The Economic Fallout for Workers Left Without Recourse

When this ruling becomes settled law in Virginia, its effects extend well beyond these five workers. Every commission-based employee in the Commonwealth now has explicit confirmation that Virginia’s wage theft statute does not cover their earnings. Employers know this. Labor attorneys know this. The workers most likely to be victimized, those in high-turnover sales roles with limited access to legal representation, may not know this until it is too late.

The practical consequence is that commission workers who believe they are owed money by a former employer must pursue other, more difficult legal pathways. Breach of contract claims require proving an enforceable agreement and navigating defenses the employer will raise. Unjust enrichment claims carry their own burdens of proof. None of these alternatives carry the triple damages, automatic fee-shifting, or criminal referral mechanisms that make Virginia’s wage theft statute genuinely deterrent.

Without those deterrent mechanisms, the rational corporate calculation shifts. The cost of withholding commissions from departing workers drops. The probability of facing significant legal consequence shrinks. The incentive structure changes in the employer’s favor.

Corporate Accountability Fails the Public: A System Designed to Exhaust Workers

The Supreme Court majority explicitly acknowledged the policy problem while declining to fix it. In the opinion’s most candid passage, the justices told the workers to take their grievances to the General Assembly. “Whether an enactment is wise, and matters of policy, are questions for the legislative branch of government, and not the judicial branch,” the majority wrote, quoting earlier precedent.

That is a defensible legal position. It is also a sentence that will not pay anyone’s rent.

The workers who brought this case had already spent years in litigation, navigating a trial court loss, an intermediate appellate victory, and finally a Supreme Court reversal. The full litigation arc of this case spans at least from the initial filing through December 2025. Workers without resources, legal knowledge, or financial cushion rarely survive that process. Those who do, as these plaintiffs apparently did, can still end up losing on a technical statutory interpretation question that has nothing to do with whether the money was actually owed.

⚖️ This is the system working as intended: employers have access to experienced legal counsel who identify statutory gaps before disputes arise. Workers learn about those gaps only after they have already been harmed.

The Language of Legitimacy: How Technocratic Reasoning Neutralizes Harm

Read the majority opinion carefully and the legal reasoning is methodical and earnest. The court applies the plain meaning rule, examines other statutes for contextual clues, discusses the tension between remedial and criminal canons of construction, and declines to defer to an administrative field manual. Each step follows from accepted principles of statutory interpretation.

The opinion never disputes that the workers were owed money. It never questions whether the 14-day cutoff agreement was fair. It never evaluates whether JES’s payment structure was designed to minimize liability to departing workers. Those questions simply fall outside the scope of the statutory construction analysis the court was performing.

This is how legal technocracy works at its most effective: the analytical framework is rigorous, the outcome is fully explained, and a group of workers leaves court with empty hands because the legislature used the wrong vocabulary in 2019 when it strengthened the wage theft statute. The legitimacy of the process obscures the inadequacy of the result.

Pathways for Reform: What Needs to Change

Fix the Statute, and Fix It Explicitly

The Virginia General Assembly can close this gap in a single legislative session. The wage theft statute needs one amendment: add the word “commissions” alongside wages and salaries wherever those terms appear. The court explicitly noted that the legislature knows how to write commission-inclusive statutes. It has done so at least six times in related contexts. Doing so in Code Section 40.1-29 would align the wage theft law with the economic reality of how millions of Virginians are actually compensated.

Prohibit Forfeiture Clauses for Commission-Based Workers

The 14-day post-termination cutoff that JES required four of the five workers to sign deserves legislative attention regardless of how the commission coverage question is resolved. Virginia already prohibits requiring non-executive employees to forfeit wages for time worked as a condition of employment. Extending that prohibition explicitly to commission-based workers, and defining forfeiture clauses with specificity, would close the secondary vulnerability this case exposed.

Strengthen the Administrative Enforcement Pathway

The Virginia Department of Labor and Industry’s field operations manual already interpreted the wage theft statute as covering commissions. The Supreme Court ruled that administrative interpretation is not binding on a pure question of statutory construction. Legislative action would not only fix the law; it would restore the agency’s enforcement authority over commission wage theft, allowing workers to seek relief without immediately resorting to litigation.

Mandatory Written Commission Agreements from Day One

JES initially had no written commission policy at all. That informality creates fertile ground for later disputes about what was agreed and when. Requiring employers to establish written, signed commission agreements at the start of employment, specifying payment timing, trigger conditions, and post-termination obligations, would give workers documentary evidence and give courts a clearer basis for enforcement.

Conclusion: Five Workers, One Missing Word, and a Systemic Failure

Joseph Campbell and his four colleagues sold foundation repairs and crawl space remediations for a living. They generated revenue for a company that then declined to pay what it owed when they left. They did what the legal system tells workers to do: they organized a collective action, hired attorneys, filed pleadings, and pursued appeals through three levels of Virginia’s court system.

They won at the intermediate level. They lost at the top. And the reason they lost had nothing to do with whether the money was genuinely owed. It had everything to do with the fact that the Virginia General Assembly, when it drafted and strengthened the wage theft statute, used two words, wages and salaries, when the full scope of the protection it was creating required a third word: commissions.

That is not an aberration. That is the ordinary operation of a legal system in which employers have sustained access to specialized legal counsel, legislative influence through lobbying and campaign contributions, and the financial stamina to litigate through every appeal. Workers have none of those structural advantages. The ones in this case fought for years and still walked away empty-handed.

🌱 The Virginia General Assembly has the power to fix this gap before the next five workers find themselves in the same position. Whether it chooses to act is a question about whose interests Virginia’s legislature actually serves.

Frivolous or Serious Lawsuit: An Evidence-Based Assessment

This lawsuit was serious, credible, and legally justified. The workers presented substantive legal theories with genuine grounding in statutory language, prior case law, and administrative interpretation. The Court of Appeals of Virginia agreed with them fully, issuing a detailed written opinion reversing the trial court in their favor. Two justices of the Supreme Court of Virginia agreed with them in dissent, finding that the plain and ordinary meaning of “wages” has included commissions in authoritative legal dictionaries since the nineteenth century.

The workers lost not because their claims were frivolous but because five justices resolved a genuinely close interpretive question against them, applying a particular canon of statutory construction over other equally legitimate approaches. The fact that three separate courts reached two different conclusions on the same legal question underscores how legitimate the underlying dispute was.

There is nothing in this record suggesting the workers fabricated their claims, inflated their damages, or pursued litigation for improper purposes. They earned commissions. They were not paid. They sought legal protection under a statute a reasonable person would expect to cover them. That the statute did not, as a matter of Virginia Supreme Court interpretation, reflects a legislative failure, not a litigation failure.