Code § 40.1-29 “Wages” Do Not Include Commissions Absent Express Legislative Inclusion

1. Introduction

Groundworks Operations, LLC v. Campbell addresses a recurring wage-and-hour question with major remedial and enforcement consequences: whether Virginia’s wage theft statute, Code § 40.1-29, reaches unpaid sales commissions.

The plaintiffs—five former employees of a construction-services business referred to collectively as “JES”— alleged they earned commissions (often their only compensation) when customers’ contracts became final, but that JES withheld commissions after the employees left the company. They filed a collective action under Code § 40.1-29 et seq., asserting that commissions are “wages” under that statute and that a later signed agreement requiring forfeiture of commissions after 14 days violated Code § 40.1-29(D).

The circuit court sustained the employer’s demurrer (holding Code § 40.1-29 does not apply to commissions). The Court of Appeals reversed, holding the statute’s reference to “wages” includes commissions. The Supreme Court of Virginia granted further review to decide a single, dispositive interpretive issue: Does Code § 40.1-29 cover commissions?

2. Summary of the Opinion

The Supreme Court of Virginia reversed the Court of Appeals and entered final judgment for the employer. It held that Code § 40.1-29’s protections for “wages” and “salaries” do not extend to commissions, either expressly or by implication. The Court emphasized that:

• Ordinary usage distinguishes “wages” from “commissions.”
• The General Assembly frequently lists “commissions” alongside “wages” in other statutes, but omitted it here.
• Title 40.1’s general definition of “employee” separately lists “wages, salaries, or commissions,” reinforcing distinct categories.
• The statute’s mixed civil/criminal features undercut reliance on purely “remedial” liberal construction.
• Agency guidance in a field manual receives no deference on a pure question of statutory interpretation.
• Courts cannot add a word the legislature “declined to employ.”

A dissent would have held that the plain meaning of “wages” includes commissions, relying heavily on dictionary history and broad formulations of “wages” in some legal sources.

3. Analysis

3.1 Precedents Cited

The Court’s analysis is anchored in Virginia’s established approach to statutory interpretation, separation of powers, and administrative deference.

A. Baseline statutory-construction framework

• Conger v. Barrett, 280 Va. 627, 630 (2010) (de novo review for statutory construction; the “primary objective” is to ascertain and give effect to legislative intent). The Court uses Conger both to justify independent review and to frame the inquiry as text- and context-driven.
• Turner v. Commonwealth, 226 Va. 456, 459 (1983) (quoted via Conger for legislative-intent principle). This supplies the Court’s canonical statement of interpretive purpose.
• Vaughn, Inc. v. Beck, 262 Va. 673, 677 (2001) (intent is determined from the words in the statute). This supports the Court’s refusal to treat broad statutory “purpose” as a substitute for enacted language.
• Boynton v. Kilgore, 271 Va. 220, 227 (2006) (plain language governs unless ambiguous or absurd). This is central to rejecting the Court of Appeals’ reliance on remedial purpose and non-textual materials.

B. Textual context and canons: redundancy/superfluity and intentional omission

• Davis v. MKR Dev., LLC, 295 Va. 488, 494 (2018) and Dilliard v. Tomlinson, 15 Va. (1 Munf.) 183, 205 (1810) (courts resist interpretations that render statutory language superfluous). The Court uses this to argue that if “wages” already meant all compensation, the statute’s separate reference to “salaries” would be difficult to justify.
• Morgan v. Commonwealth, 301 Va. 476, 482 (2022) (when the General Assembly uses specific language in one place but omits it elsewhere on similar subject matter, the omission is presumed intentional). This is the Court’s key comparative-statutory argument: many Virginia statutes explicitly enumerate “commissions” with “wages,” demonstrating legislative capacity and making the omission from Code § 40.1-29 probative.

C. Common-law carryover (rejected as unnecessary here)

• Tvardek v. Powhatan Vill. Homeowners Ass'n, 291 Va. 269, 276 n.4 (2016) (statutes touching common law are read with the common law unless clearly changed). The Court notes plaintiffs did not claim “wages” is a common-law term of art requiring historic incorporation, so the Court proceeds with ordinary meaning rather than common-law reconstruction.

D. Remedial vs criminal canons and their “offsetting” effect

• Carmel v. Hampton, 241 Va. 457, 460 (1991) (remedial statutes construed liberally). Plaintiffs invoked this to argue for inclusion of commissions; the Court assumes arguendo it might apply.
• Jimenez v. Commonwealth, 241 Va. 244, 251 (1991) (criminal statutes strictly construed). The Court emphasizes Code § 40.1-29 includes criminal penalties (Code § 40.1-29(E)), so a purely liberal remedial construction is in tension with strict construction.

E. Prior “wages” definitions in other contexts (distinguished)

• Fidelity Insurance, Trust & Safe Deposit Co. v. Shenandoah Valley Railroad Co., 86 Va. 1, 8 (1889) (defining wages as compensation for services in a constitutional “single object” analysis). The Court holds this did not address wages-versus-commissions and did not interpret Code § 40.1-29.
• Commonwealth of Virginia/Department of Transportation v. Swiney, 23 Va. App. 467 (1996) (WTA payments not “wages” for Workers’ Compensation Act). The Court treats Swiney as context-specific and not a general rule that commissions are wages under the wage theft statute.

F. Separation of powers and policy restraint

• Horner v. Dep't of Mental Health, Mental Retardation, & Substance Abuse Servs., 268 Va. 187, 193 (2004) (wisdom/policy are legislative questions).
• Howell v. McAuliffe, 292 Va. 320, 326 (2016) (courts interpret law, not policy).
• Verizon Va. LLC v. State Corp. Comm'n, 302 Va. 467, 478 (2023) (courts cannot extend statutes based on perceived policy).
• Prease v. Clarke, 302 Va. 376, 385 (2023) (quoted in Verizon for the same principle).
• Coalter v. Bargamin, 99 Va. 65, 71 (1901) (“We can only administer the law as it is written.”). Together these cases are deployed to reject purposive expansion to cover commissions absent textual support.

G. Administrative deference (limited)

• Virginia Dep't of Health v. Kepa, Inc., 289 Va. 131, 139 (2015) (deference to agencies within specialized competence, but not on pure statutory interpretation). The Court uses Kepa to deny deference to a Department of Labor and Industry field manual asserting Code § 40.1-29 covers commissions.

H. No judicial interpolation of missing statutory terms

• Virginian-Pilot Media Cos., LLC v. Dow Jones & Co., 280 Va. 464, 469 (2010) (courts cannot add language the General Assembly declined to employ).
• Carter v. Nelms, 204 Va. 338, 346 (1963) (legislative intent is determined by what the statute says, not what it “should have said”). These cases supply the doctrinal capstone: adding “commissions” would be judicial rewriting.

I. Dissent’s interpretive authorities

• Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340 (1998) (when not defined, infer intent from plain meaning; dictionaries used).
• Travelers Indem. Co. v. Portal Healthcare Solutions, LLC, 35 F. Supp. 3d 765, 770 (E.D. Va. 2014) (observing Virginia courts often use dictionaries to determine plain meaning).
• Cornell v. Benedict, 301 Va. 342, 349 (2022) (legislature says what it means and means what it says). The dissent uses this to argue “wages” was chosen to carry its broad dictionary meaning—including commissions.
• Stowell v. Action Moving & Storage, 933 A.2d 1128, 1132 (Vt. 2007) (example from another jurisdiction treating commissions as “wages” absent a statutory definition). The dissent uses this comparatively; the majority does not adopt it.

3.2 Legal Reasoning

The Court’s reasoning proceeds in a structured sequence: (1) ordinary meaning and linguistic distinction; (2) statutory context within Title 40.1; (3) cross-code comparison demonstrating intentional omission; (4) rejection of interpretive shortcuts (remedial-purpose expansion, noncontrolling prior “wages” cases, agency manual); and (5) separation-of-powers constraint against rewriting statutes.

A. Ordinary meaning: wages are “usually” time/output-based; commissions are sales-percentage based

The Court treats “wages” and “commissions” as conceptually distinct in common parlance and in the definitional core of Black’s Law Dictionary. It acknowledges that “wages” can sometimes be used broadly, but finds no sign the General Assembly used the term in that expansive sense here.

B. Internal statutory context: Title 40.1 distinguishes “wages, salaries, or commissions”

The Court places considerable weight on Code § 40.1-2’s definition of “employee,” which separately enumerates “wages, salaries, or commissions.” Against that baseline, Code § 40.1-29’s repeated pairing of “wages” and “salaries”—without “commissions”—suggests deliberate coverage choices.

C. Structural fit: Code § 40.1-29’s operational rules read like wage/salary rules, not commission rules

The statute details pay frequency and timing for hourly and salaried employees, and termination-payment rules for “wages or salaries.” The Court views the absence of commission-specific timing and earning rules as consistent with noncoverage rather than an implicit inclusion.

D. Comparative statutes: the General Assembly routinely says “wages, commissions …” when it means commissions

The opinion’s most concrete textual argument is comparative: many other Code provisions expressly list “commissions” with “wages,” including Code § 6.2-1526(A), Code § 8.01-512.3, Code § 20-108.2(C), Code § 34-4.2(A), Code § 60.2-229(A), and Code § 63.2-1900. The Court reads this pattern, under Morgan v. Commonwealth, as evidence that omission from Code § 40.1-29 is meaningful.

E. Canons do not rescue plaintiffs: remedial purpose is offset by penal features

Even if Code § 40.1-29 is remedial in part, it is also criminal in part (Code § 40.1-29(E)), which invokes strict construction principles. The Court’s key move is not to pick one canon, but to treat the canons as “offsetting” and return to enacted text and context.

F. No agency deference on pure legal interpretation

The Department of Labor and Industry’s field manual asserted Code § 40.1-29 covers commissions, but the Court—citing Virginia Dep't of Health v. Kepa, Inc.— treats this as a pure question of law outside specialized competence, reviewed de novo, and rejects the manual’s conclusory view.

G. Judicial restraint: adding “commissions” would be impermissible interpolation

The opinion culminates in the principle from Virginian-Pilot Media Cos., LLC v. Dow Jones & Co.: courts may not insert language the legislature omitted. For the majority, the plaintiffs’ position ultimately asks the Court to amend Code § 40.1-29, which must be left to the General Assembly.

3.3 Impact

A. Immediate litigation consequences

• Pleading strategy and causes of action: Plaintiffs seeking unpaid commissions will need to rely on contract, quasi-contract, statutory schemes that expressly include commissions, or other applicable doctrines—rather than Code § 40.1-29’s enhanced remedies.
• Remedies shift materially: Exclusion from Code § 40.1-29 removes statutory liquidated damages, potential treble damages, and fee shifting that often make wage-theft claims economically viable.
• Collective action channel narrows: Code § 40.1-29(J) authorizes collective actions “consistent with” the FLSA’s procedures. By excluding commissions, the Court reduces the set of claims eligible for that statutory aggregation vehicle.

B. Employer-employee contracting over commissions

• Commission plan drafting becomes decisive: With Code § 40.1-29 off the table, the “earned” versus “paid” distinction, post-termination commission cutoffs, and vesting conditions will likely be fought under contract interpretation rather than wage-theft rules.
• Forfeiture disputes move: Plaintiffs also invoked Code § 40.1-29(D)’s forfeiture prohibition. If commissions are outside the statute, that particular statutory forfeiture protection may not constrain commission forfeiture clauses (subject to other laws).

C. Legislative pressure point

The Court repeatedly signals that policy arguments favoring commission coverage belong to the General Assembly. The decision thus clarifies the amendment target: if Virginia wishes wage-theft enforcement to cover commissions, Code § 40.1-29 must be revised to say so.

4. Complex Concepts Simplified

• Demurrer: A procedural challenge arguing that, even if all alleged facts are true, the complaint does not state a claim the law recognizes. Here, the employer argued the statute invoked by plaintiffs does not cover commissions—so the claim fails as a matter of law.
• De novo review: The appellate court decides the legal question “from scratch,” without deference to lower-court legal conclusions. Statutory interpretation is typically reviewed de novo.
• Statutory construction / “plain meaning”: Courts start with the words enacted. If they are clear and not absurd in application, courts apply them as written rather than rewriting them to better fit perceived purpose.
• Superfluity canon: Courts avoid interpretations that make statutory words redundant. The majority reasoned that if “wages” already meant all compensation, the separate word “salaries” would be less meaningful.
• Intentional-omission inference: If the legislature uses a word in some statutes but omits it in another addressing a similar subject, courts presume the omission was deliberate (here, “commissions”).
• Remedial vs penal statutes: Remedial statutes are sometimes read broadly to advance their remedy, while penal statutes are read narrowly. Code § 40.1-29 has both civil remedies and criminal penalties, so the Court declined to use only a liberal “remedial” lens.
• Agency deference limits: Courts may respect agencies on technical matters within expertise, but deciding what a statute means is ultimately a judicial function. A field manual cannot override statutory text.

5. Conclusion

The Supreme Court of Virginia’s decision establishes a clear interpretive boundary: Code § 40.1-29 covers “wages” and “salaries,” not commissions. The Court reaches this result through a disciplined textual and contextual analysis—reinforced by cross-code drafting comparisons and the principle that courts cannot supply omitted terms. The dissent’s broader dictionary-based view underscores that the dispute is ultimately about who should decide whether commissions receive wage-theft protections; the majority answers: the General Assembly.