The Legal Loophole That Let a Construction Giant Walk Away From Thousands in Earned Pay
Five salespeople sold foundation repairs, waterproofing, and crawl space jobs for JES Construction. They earned every commission. Then they left the company, and the checks stopped coming. Virginia’s highest court just ruled the state’s wage theft law doesn’t cover them. Here’s what happened, why it matters, and who is responsible.
The Non-Financial Ledger: What These Workers Actually Lost
Forget the legal abstractions for a moment. Picture what it looks like to sell crawl space waterproofing for a living. You drive to strangers’ homes. You walk through someone’s basement, shine a flashlight on crumbling concrete, and explain in plain language why their foundation is sinking. You spend hours convincing a family that the $15,000 repair is worth it. You close the deal. You shake hands. You drive away knowing your cut is coming.
Then the permitting phase drags on. Engineering reviews slow everything down. The job doesn’t finish for four months. Your half-commission trickled in early, but the rest sits in limbo. You keep selling. You trust the system.
Then you leave the company. Maybe you found a better opportunity. Maybe the environment became unbearable. Maybe you simply moved on. And the checks stop. Not because you didn’t earn them. Not because the sales fell through. Because you left. And JES decided that leaving meant forfeiting what you already earned.
Three of the five workers had been pressured to sign an agreement formalizing exactly that arrangement: any outstanding commissions would be paid within 14 days of separation, and nothing after that. Read that again. If your last job took five months to close because of permits and inspections, you had a two-week window to collect. After that, the money evaporated.
For workers paid exclusively on commission, this is the entire paycheck disappearing. These were not bonus payments on top of a base salary. For four of the five plaintiffs, the commission was the job. It was how they paid rent. It was how they bought groceries. Calling it a “commission” instead of a “wage” is a legal distinction that means nothing to a person staring at an empty bank account.
The Virginia Supreme Court acknowledged this reality and then stepped over it. The majority wrote that the workers’ policy arguments were “best addressed to the General Assembly.” Translated from judicial language: that’s a problem for politicians to solve, not judges. The five workers, and every other commission-only employee in Virginia, were told to go lobby their state legislature while the debt they were owed remained unpaid and legally unenforceable under the most powerful worker protection statute in the state.
What these workers lost was the specific legal muscle that makes wage theft law worth anything: the right to sue for double damages, to recover attorney fees, and to hold the employer accountable for triple damages if the refusal to pay was knowing and intentional. Without Code § 40.1-29, their only remaining options are slower, more expensive, and far less certain civil contract claims. The employer’s legal team knows this. That asymmetry is not accidental.
Legal Receipts: What the Court Actually Said
These are direct quotes from the Virginia Supreme Court’s December 30, 2025 ruling in Groundworks Operations, LLC v. Campbell, Record No. 241092. Every word below is verbatim from the court’s opinion or dissent.
“The language of the statute specifically lists wages and salaries, but it does not expressly apply to commissions… We conclude that the language of the statute and its context do not support an interpretation that extends its protections to commissions.” Majority Opinion, Justice Stephen R. McCullough, December 30, 2025
- This is the core ruling. The majority chose to read the word “commissions” as absent from Code § 40.1-29, then treated that absence as proof of legislative intent to exclude commission workers from protection. The statute never said “commissions are excluded,” but the court treated a missing word as a deliberate policy choice.
- The consequence: workers who earn every dollar through sales, and who receive no base pay at all, now have no access to the wage theft statute’s most powerful remedies: double damages, triple damages for knowing violations, and attorney fee recovery.
“The General Assembly often has been quite specific in employing the term commissions alongside wages… [T]he omission of the term commissions from Code § 40.1-29 indicates that the General Assembly did not intend to include them within the scope of the statute.” Majority Opinion, Justice McCullough
- The majority cited at least six other Virginia statutes that explicitly list “wages, salaries, and commissions” together: Code §§ 6.2-1526(A), 8.01-512.3, 20-108.2(C), 34-4.2(A), 60.2-229(A), and 63.2-1900. The argument is: the legislature knew the word “commissions” existed and chose not to write it into the wage theft law.
- This is called the “negative implication” rule of statutory construction. Critics of this approach argue it lets a single missing word override the entire remedial purpose of a protective law.
“Code § 40.1-29(E) provides for a criminal prosecution in the event an employer ‘willfully and with intent to defraud fails or refuses to pay wages in accordance with this section.’ The classification of the crime depends on the value of the wages. When ‘the value of the wages earned and not paid by the employer is less than $10,000,’ the crime is a Class 1 misdemeanor. If the value of the wages is $10,000 or more… the crime is a Class 6 felony.” Majority Opinion, describing the law’s criminal penalty structure
- The majority used the criminal penalty provision as a reason to interpret the statute narrowly. Criminal laws must be “strictly construed,” meaning courts cannot expand their reach. But the same law that creates criminal liability also creates civil remedies. The majority said these two interpretive canons “offset” each other, which effectively left the statute’s scope at its most literal, narrowest reading.
- Workers lose in both directions: they cannot use the law’s remedial purpose to expand civil protections, and the criminal provision’s strict construction requirement pushes the whole statute toward a narrower reading.
“The plaintiffs and amicus present a number of thoughtful policy arguments for why the wage theft statute should also cover commissions. These arguments are best addressed to the General Assembly.” Majority Opinion, Justice McCullough
- This is the majority’s most direct statement that it is deferring to the legislature on a question of worker protection. “Best addressed to the General Assembly” means: go lobby your state representatives and get the law rewritten. Until then, the court will not help you.
- Commission-only workers in Virginia now depend entirely on a future legislative fix. Given that the Virginia General Assembly has shown no urgency on this issue, that protection could remain absent for years.
Chief Justice Goodwyn, dissenting, joined by Justice Mann
“Four of the five employees were paid exclusively by commission. In such instances, the commission payments are necessarily compensation because they are based on a particular employee’s ability to secure sales and are the sole payment from the employer to the employee… That commissions are calculated from a percentage of the final sale price does not alter the payment’s purpose: to compensate an employee based on work the employee has produced.” Chief Justice Goodwyn, dissenting
- The dissent’s core point: when commission is the only form of pay, it functions identically to a wage. Calling it something else does not change its economic reality. Withholding it is withholding the worker’s entire paycheck.
- Chief Justice Goodwyn cited multiple editions of Black’s Law Dictionary dating back to 1891 and Webster’s Third New International Dictionary, all of which define “wages” broadly enough to include commissions. The dissent argues the majority’s narrow reading contradicts over a century of dictionary definitions and case law.
Societal Impact Mapping: Who Else This Decision Hits
Public Health
Commission-based pay structures are concentrated in service industries where workers already operate without strong safety nets. This ruling removes a key legal tool from an economically fragile workforce.
- Commission-only workers frequently lack access to employer-sponsored health insurance. When a promised paycheck evaporates after leaving a job, the gap does not just affect rent. Medical appointments get skipped, prescriptions get delayed, and the downstream costs of financial stress compound existing health vulnerabilities.
- The stress of wage theft is well-documented as a public health issue. When workers cannot access fast legal remedies with fee-shifting provisions, they often absorb the loss rather than pursue expensive litigation. The psychological burden of knowing you are owed money and cannot afford to fight for it is a documented driver of anxiety, depression, and related disorders in low-to-middle-income workers.
- Home services industries, including foundation repair, waterproofing, and construction sales, operate heavily on commission structures in areas without strong union representation. Workers in these sectors are disproportionately working-class adults without college degrees, a group already bearing outsized exposure to financial instability.
Economic Inequality
This ruling does not affect all workers equally. Its effects land hardest on people who already have the least leverage in the employer-employee relationship.
- Commission-only workers have no base salary to fall back on when commissions are delayed or denied. Four of the five plaintiffs in this case had zero other income from JES. For them, an unpaid commission is the equivalent of a salaried worker going months without a paycheck, except with no legal recourse now available under the state’s most powerful wage protection statute.
- The ruling creates a two-tiered system of wage protection in Virginia. Hourly and salaried workers retain full access to Code § 40.1-29’s remedies, including double damages, triple penalties for knowing violations, and attorney fee recovery. Commission workers now fall outside that system entirely and must rely on slower, more expensive contract-based civil claims.
- The attorney fee provision in Code § 40.1-29 is the single most important equalizer for low-wage workers pursuing wage claims. Without it, the cost of litigation is prohibitive. No fee, no lawyer. No lawyer, no case. This ruling effectively prices commission workers out of enforcement.
- Employers in commission-heavy industries now have a structural legal incentive to delay finalizing commission payments until after a worker leaves, then refuse to pay. The 14-day post-employment cap JES required workers to sign is a template for how to operationalize this. Because it works, other employers will copy it.
- Virginia’s commission-based workforce includes real estate agents, home services salespeople, insurance agents, car salespeople, and direct-to-consumer service industry workers. The precise number of Virginia workers affected by this ruling is not specified in the source document, but the industries involved are large, and commission-only pay structures are standard across all of them.
The “Cost of a Life” Metric
What Now? The Path Forward for Commission Workers in Virginia
The Virginia General Assembly is the only institution that can reverse this outcome legislatively. The court has closed the door. The legislature holds the key. Here is who to target, who to watch, and what to do.
Who Needs to Hear From You
The following corporate roles at Groundworks Operations LLC and JES Construction LLC are directly responsible for the commission payment practices described in this ruling. Source material does not include individual executive names; these are the titles accountable for the policy decisions at issue:
- Chief Executive Officer, Groundworks Operations LLC: The management company that controlled JES Construction and set compensation policy for affiliated companies.
- Chief Human Resources Officer / People Operations Lead, Groundworks Operations LLC: Responsible for the commission policy that initially had no written form and later produced the 14-day post-employment cap agreement.
- General Counsel, Groundworks Operations LLC: The legal office that drafted, reviewed, and enforced the agreement requiring workers to forfeit commissions after 14 days of separation.
- Virginia General Assembly members on the Commerce and Labor Committee: This is the committee with jurisdiction over Title 40.1 of the Virginia Code. The statutory fix is a single word: adding “commissions” to Code § 40.1-29 alongside “wages” and “salaries.”
Watchlist: Regulatory Bodies
- Virginia Department of Labor and Industry (DOLI): The agency already interpreted Code § 40.1-29 as covering commissions in its March 2022 Field Operations Manual. That interpretation was overruled by the court. DOLI should now formally advocate for a legislative amendment restoring commission protections.
- U.S. Department of Labor / Wage and Hour Division: Federal wage protections under the Fair Labor Standards Act apply to commission workers in certain contexts, particularly where commissions fail to produce pay equivalent to minimum wage. Commission-only workers in Virginia may have parallel federal remedies worth exploring.
- Virginia Attorney General’s Office: The AG has broad authority to investigate unfair business practices. An employer requiring workers to sign agreements that zero out earned compensation within 14 days warrants scrutiny beyond this single case.
- Consumer Financial Protection Bureau (CFPB): Where commission-based payment structures intersect with consumer financial products or debt collection, the CFPB retains jurisdiction to examine exploitative practices in the home services industry.
What You Can Do Right Now
- Contact your Virginia state delegate and state senator directly and demand they introduce or co-sponsor a bill amending Code § 40.1-29 to add the word “commissions” alongside “wages” and “salaries.” This is a one-word fix with a documented legal need. The court said it belongs to the legislature. Hold the legislature to that responsibility.
- If you are a commission-only worker in Virginia who was denied earned commissions after leaving an employer, consult a wage and hour attorney immediately. Even without Code § 40.1-29, you may have breach of contract claims. Document everything: commission agreements, sales records, payroll statements, and any written communications about post-exit pay.
- Support Virginia worker advocacy organizations that are lobbying for wage theft reform. Local and statewide labor unions, worker centers, and legal aid organizations in Virginia are the infrastructure through which legislative change actually happens. Financial support, volunteer hours, and public visibility all matter.
- If you work in a commission-heavy industry, unionization or collective bargaining creates contractual wage protections that exist independent of state statute. A union contract can guarantee commission payment timelines and dispute resolution mechanisms that no court ruling can strip away.
- Share this ruling with coworkers, especially those in sales roles. Most commission workers in Virginia do not know this ruling exists. The employers who benefit from it do. Closing that information gap is itself a form of resistance.
The source document for this investigation is attached below.
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