Are Disputed Employee Commissions Subject to the Virginia Wage Payment Law?

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Virginia’s wage-payment law has been one of the most potent pieces of employment legislation in the Commonwealth in recent years, because it does more than tell employers when to pay; it arms employees with meaningful remedies when pay is unlawfully withheld. Va. Code § 40.1-29 requires employers to establish regular pay periods, to pay employees all wages or salaries due for work performed, and to forward pending wages in a timely manner after separation.  It also restricts an employer’s ability to withhold wages (outside of taxes and other lawful deductions) without the employee’s written authorization.

When an employee resigns or is terminated, disputes often arise over unpaid commissions where the employee has significantly contributed to a particular project or sale.  The employer commonly treats commissions as contingent upon some later milestone or event, such as project completion or customer payment. In Groundworks Operations LLC v. Campbell (Va. Supreme Court Record No. 241092, December 30, 2025), former employees alleged they were owed commissions connected to sales activity occurring during their employment, while the employer’s position was that the company’s commission structure did not require payment when employment ended before later conditions were satisfied. The employees invoked Va. Code § 40.1-29’s wage-theft framework, seeking to treat the unpaid commissions as “wages” protected by the statute’s enhanced civil remedies.​

The Supreme Court did not ultimately resolve the dispute by declaring when, as a matter of commission-plan design, a commission becomes “earned.” Instead, it focused on a threshold question: whether Va. Code Section 40.1-29 covers commissions at all. The Court held that, under the statute’s language and context, the wage-theft statute does not extend its protections to commissions. The Supreme Court’s decision reverses the Court of Appeals’ November 2024 ruling in the same case, which had held that commissions were included within the statutory definition of “wages.” That intermediate appellate court had relied on the remedial purpose of the wage-theft statute, past decisions interpreting “wages” in other contexts, and guidance from an administrative agency field manual.

The resulting caveat for Virginia employers again highlights the importance of carefully defining and communicating commission compensation plans. A well-drafted plan spells out what event earns the commission, what happens if the employee separates prior to payout, and whether one must be employed on payout date.  

Should Nurses Be Classified as Independent Contactors?

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The misclassification of nurses and nurse practitioners as “1099 employees” is drawing intense scrutiny in Virginia and across the country. For medical practices, staffing agencies, and facilities, classifying RNs, LPNs, or NPs who function like employees in day‑to‑day operations as contractors is exceedingly risky under both federal and Virginia law.

In Chavez‑DeRemer v. Medical Staffing of America, LLC d/b/a Steadfast Medical Staffing, the U.S. Court of Appeals for the Fourth Circuit recently affirmed a judgment against a Virginia‑based staffing company that had treated more than 1,000 nurses and nursing assistants as independent contractors. The Department of Labor’s investigation showed that the staffing company required the workers to complete an “employment” application, controlled their schedules and rates of pay, placed non‑compete restrictions on them, and provided liability and workers’ compensation coverage, all while paying them on a day‑rate basis without overtime.

Applying the familiar “economic realities” test, the Fourth Circuit agreed that the nurses were economically dependent on the staffing company.  The business exerted extensive control over their work; the nurses had minimal opportunity for profit or loss beyond working more hours; the nurses own capital investment was negligible; the relationship was ongoing rather than project‑based; and the nursing services were integral to the company’s business. The mere label of an “independent contractor agreement” did not defeat entitlement to overtime under the Fair Labor Standards Act.

Virginia has layered an additional level of protection on top of these federal standards under Va. Code § 40.1‑28.7:7, its worker‑misclassification statute. Virginia law creates a presumption that anyone paid to perform services is an employee of the payor unless the putative employer can prove independent‑contractor status under IRS guidelines, effectively shifting the burden of proof onto the practice or staffing agency that wants to classify a clinician as 1099. A misclassified worker can sue for lost wages, salary, benefits, plus reasonable attorney’s fees and costs.  Employers also may face additional exposure for unpaid taxes, workers’ compensation, and unemployment contributions.

For nurses and nurse practitioners working in Virginia, where the actual working relationship reflects employee‑like control and dependence, the law presumptively treats the clinician as an employee regardless of the employer’s efforts to shift “employee” expenses using a 1099 contract structure. To support legitimate independent‑contractor status, the clinician ideally would operate a real business with multiple clients, exercise meaningful control over when and how work is performed, bear some entrepreneurial risk, and avoid restraints that tether them to a single entity.

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Richmond Employment Lawyer

What’s is Virginia’s Right-to-Work Law?

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For decades, Virginia’s right-to-work law has been a defining feature of the Commonwealth’s labor landscape. Va. Code § 40.1-58 et seq., prohibits requiring any employee to join a union or pay union dues as a condition of employment. Supporters consider it a safeguard of individual worker freedom, while opponents view it as a structural barrier that weakens unions and depresses wages. With the recent of introduction of SB 32, a bill seeking to repeal the law in its entirety, Virginia is reexamining a policy that has shaped workplaces for generations.

One of the most persistent misconceptions in employment law is the belief that “right-to-work” means an employer may fire an employee at any time, for any reason. That is incorrect. The doctrine permitting termination without cause is called “at-will employment,” and Virginia, like most states, follows “at-will” as its default rule. “Right-to-work” laws have nothing to do with hiring or firing. They relate solely to whether union membership or fees can be required as a condition of employment.

Virginia adopted its right-to-work in 1947, in the same period that Congress enacted the Taft-Hartley Act, which expressly permitted states to ban contractual requirements compelling union membership. The core language declares it “the public policy of the Commonwealth” that a worker cannot be denied employment because of membership or non-membership in a union. In practice, this means employers and unions may not negotiate union-shop or agency-shop clauses that would require represented employees to join a union or pay fees to support representation.

Virginia’s right-to-work law does not ban unions. It does not prohibit workers from organizing, voting for union representation, or engaging in collective bargaining where otherwise permitted. Instead, it restricts labor-management agreements requiring workers to financially support the union that represents them. This restriction can create a “free rider” problem often cited by labor organizations. Unions in right-to-work states must represent all employees in the bargaining unit, even non-members that choose not to pay dues. In effect, non-member employees still receive the benefit of higher wages, benefits, and grievance representation without paying for those services, thereby weakening unions’ finances, reducing bargaining power, and helping keep union membership low.

With a pending Administration change, SB 32, https://lis.virginia.gov/bill-details/20261/SB32 seeks to repeal Virginia’s right-to-work statute outright and allow employers and unions to negotiate contracts requiring employees covered by a collective bargaining agreement to either join the union or pay a fee to support its representational activities. (Under current law, public-sector workers would remain exempt from mandatory fees regardless of SB 32’s fate). Repeal would not impose automatic membership on every worker, but it would open the door for unions and employers to negotiate contracts that require represented employees to either join the union or pay equivalent fees as a condition of employment. Labor advocates argue this proposed change will strengthen workers’ collective bargaining power, potentially leading to improved wages, benefits, and working conditions. Business groups counter that mandatory fees will drive up labor costs, potentially making Virginia less competitive in attracting new businesses and encouraging existing employers to relocate to right-to-work states. With these competing interests, any change is certain to be highly contested.

Richmond Employment Lawyer

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Can Remote Work Be an Accommodation Under the ADA?

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The legal landscape around remote work as a reasonable accommodation under the Americans with Disabilities Act (ADA) has undergone a marked evolution since the COVID‑19 pandemic. What was once treated as an exceptional or disfavored request is now evaluated through a more fact‑intensive lens, particularly where an employee has already demonstrated successful performance while working remotely. Courts and enforcement agencies increasingly expect employers to support in‑person attendance requirements with concrete evidence tied to job duties and business needs, rather than generalized assumptions about office culture or managerial preference.

Before 2020, courts approached remote work accommodation requests with considerable skepticism, generally deferring to employer assertions that physical presence constituted an essential job function. The Sixth Circuit’s ruling in EEOC v. Ford Motor Co. exemplified this approach, upholding denial of full-time remote work for an employee on grounds that regular in-person attendance was essential for spontaneous team interactions and access to shared resources. The pre-pandemic logic was rooted in a traditional understanding of the work environment, where face-to-face collaboration, direct supervision, and physical proximity to resources were presumed indispensable. Even the Equal Employment Opportunity Commission, while acknowledging guidance that remote arrangements could sometimes qualify as reasonable accommodations, rarely saw such claims succeed in absent extraordinary circumstances.

Pandemic-related experiments with remote work questioned these presumptions, and by 2025, the legal landscape has shifted markedly. Courts now demand more than employer assertions about the necessity of physical presence, instead conducting individualized assessments that weigh actual job performance data against claimed operational needs.  Recent case law illustrates this evolving judicial approach, with courts finding genuine factual disputes over whether full-time remote work, as successfully performed by the employee over prior time periods, imposed an undue hardship or eliminated essential functions.

Employers who document legitimate on-site requirements may still prevail, but those who refuse accommodation requests without meaningful engagement face significant litigation risk. The net effect of temporary COVID telework has been to erode the “essential” status of office presence, forcing employers to justify denials with concrete data on productivity impacts or operational disruptions. When an employee with a disability seeks to continue remote work after demonstrating successful performance during or after the pandemic, employers face substantial procedural and substantive obligations under the ADA. Employers bear the affirmative duty to initiate and sustain an interactive process upon receiving a formal accommodation request. Failure to engage in this good-faith dialogue can itself constitute an ADA violation, regardless of whether a particular accommodation would ultimately be deemed reasonable.

For mental health conditions such as depression and anxiety, these obligations take on particular significance. The EEOC explicitly recognizes mental health conditions like depression or anxiety as ADA-covered disabilities when they substantially limit major life activities such as concentrating or interacting with others. These conditions often manifest episodically and can be exacerbated by an office environment, making remote work a potentially effective accommodation.  To justify compelling an office return, the employer must first articulate, with evidence, why physical presence qualifies as an essential function tailored to that role and then prove that the requested accommodation would cause undue hardship, defined as significant difficulty or expense relative to the business’s resources. Generalized assertions about collaboration benefits or supervisory preferences may no longer suffice.

The law remains fact-bound: remote work is neither automatically granted nor forever barred, but contingent on whether it enables performance of essential functions without undue hardship—a standard now illuminated by real-world pandemic evidence.  Employers who embrace this evidence-based, individualized approach will not only avoid costly litigation but will also tap into talent that traditional office-centric models might otherwise exclude.

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Wrongful Termination: Can an Employee Be Fired for Discussing Wages or Work Conditions With Co-Workers?

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What Is Concerted Activity?

Under the National Labor Relations Act (NLRA), employees (including most non-union employees) have the right to engage in concerted activities for the purpose of mutual aid or protection—such as discussing wages or seeking improvements in workplace conditions. However, not all complaints or discussions are protected.

  • Concerted activity means actions taken by or on behalf of a group of employees, or activity that seeks to initiate, induce, or prepare for group action.
  • Activities solely related to personal issues—for example, an employee complaining only about their individualized grievance that does not relate to or seek to involve others—generally are not protected as concerted activity under the NLRA.

In the recent Ninth Circuit case NLRB v. North Mountain Foothills Apartments (2025), the court found that discussing pay and poor working conditions with coworkers, which led to broader concern and affected others, was protected. The employee’s conduct was not just about a personal matter—it was relevant to the group and sparked wider discussion among employees.

NLRB’s Role and the Adjudication Process

The National Labor Relations Board (NLRB) enforces the NLRA by investigating charges of unfair labor practices, conducting hearings before administrative judges, and issuing decisions and remedies to protect employee rights. The process is administrative, focused on restoring the employee’s prior position (“make-whole relief”) when rights are violated. If the NLRB finds an employer retaliated for protected concerted activity, possible remedies include reinstatement to the employee’s job, back pay and lost benefits, and cleansing of personnel files and orders requiring posting of notice of rights.

As clarified in both the North Mountain decision and by the NLRB in Thryv, Inc., these remedies are equitable—designed to make the employee whole, not to punish the employer. Under present case law, compensatory or punitive damages generally are NOT available, and there is no right to a jury trial in the NLRB process.


Virginia’s Added Protections: Va. Code § 40.1-28.7:9

Virginia law has added a strong parallel protection.  Under Virginia Code § 40.1-28.7:9, it unlawful for employers to discharge or retaliate against employees for inquiring about, discussing, or disclosing their wages or compensation. This law applies regardless of whether there is union involvement. Virginia law also grants employees the right to: file a civil lawsuit in state court and seek remedies including reinstatement, back pay, and “other appropriate relief.”

Takeaway: Employees discussing wages or work conditions for their mutual benefit are protected against employer retaliation under both federal and state law. But purely personal complaints, unrelated to group concerns, may not enjoy such protection. Employers should exercise great caution about disciplining employees for pay or condition-related discussions and seek legal counsel before taking any adverse action.

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The Growing Trend Toward Pay Transparency in Virginia

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In recent years, pay transparency has emerged as notable trend in the employment sector. Pay transparency laws require employers to disclose salary ranges and compensation details in job postings and upon request. The primary motivation behind this shift is to promote pay equity, particularly addressing disparities based on gender, race, and disability.​

Several states have already enacted pay transparency laws. As as of 2025, at least 11 states have comprehensive requirements in place. California’s Senate Bill 1162 mandates that employers with 15 or more employees include salary ranges in all job postings, including those for remote positions. Similarly, Colorado’s Equal Pay for Equal Work Act requires employers to disclose compensation in all job postings and prohibits retaliation against employees who discuss their pay.​

However, the implementation of pay transparency laws is not without challenges. One concern is the potential for pay compression, where salary differences between employees with varying levels of experience and tenure become narrower. This could lead to dissatisfaction among long-term employees who may feel their experience is undervalued. Additionally, employers may face difficulties in setting competitive salaries if they are required to disclose compensation ranges, potentially limiting their flexibility in negotiations.

Virginia has actively considered pay transparency legislation but has not yet enacted comprehensive requirements. Most notably, Senate Bill 1132 was introduced during the 2025 General Assembly session, which would have required employers with 50 or more employees to disclose wage ranges in job postings and prohibited inquiries about salary history. The bill passed both chambers in the General Assembly but was vetoed in March 2025, but ​the upcoming change in administration could lead to the eventual enactment of similar legislation.

However, Virginia does maintain existing protections under Virginia Code § 40.1-28.7:9, which prohibits employers from retaliating against coworkers who discuss their respective wages with coworkers. As drafted “[n]o employer shall discharge from employment or take other retaliatory action against an employee because the employee … inquired about or discussed with, or disclosed to, another employee any information about either the employee’s own wages or other compensation or about any other employee’s wages or other compensation.” For Virginia employers, the lack of state-mandated pay transparency means compensation disclosure remains voluntary, as existing laws focuses exclusively on wage discussion protections without the salary posting requirements found in other states.

However, even without a Virginia mandate, local employers still must navigate pay transparency if they recruit or employ remote workers in states with disclosure requirements. Many state laws apply when an employee could potentially work from that state, regardless of where your business is headquartered. If you post positions available to remote workers nationwide, you may need to include salary ranges to comply with other jurisdictions’ laws.

Virginia Employment Lawyer

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One Simple Rule Change Could Restructure the Social Security Disability Benefit Program

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Under current Social Security Administration rules, SSDI claimants that do not meet a listed impairment are evaluated by how their age, education and work experience affect the claimant’s ability to adjust to other work. Disability decisions are are based on “Grid Rules” that treat age as a key vocational factor. Older applicants (typically age 50 and up) receive more favorable consideration because SSA assumes that they have more difficulty making an occupational adjustment. For example, a 55 year old construction worker who only has worked a medium to heavy exertion job is not currently required to retrain for sedentary clerical work.

Recent reporting suggests that the current administration is considering a rule change that would eliminate age as a vocational factor or alternatively, move the beginning age threshold from 50 up to around 60. As a result, many older applicants will no longer qualify for SSDI benefits on the presumption that they are employable for some form of sedentary work, regardless of whether they can actually secure such employment.

The proposed change also would affect Medicare coverage because SSDI entitlement automatically triggers eligibility for Medicare after a 24-month waiting period. If fewer older claimants with severe medical impairments qualify for SSDI, a similar percentage of those individuals may have to forego health insurance coverage or take early retirement benefits to offset medical expenses, further depleting funds available for support in their actual retirement years.

While the grid rules admittedly were crafted during a different economy, the wholesale elimination of age as a factor in disability assessment disregards the practical impact of age as a vocational factor. A job that exists “on paper” does not always correlate to realistic job opportunities. Older workers with severe medical conditions may not have the time or opportunity to retrain for new occupations if their skills do not easily transfer to sedentary work. Moreover, older workers may struggle to obtain alternative positions if their medical conditions require additional disability accommodations or if they face age bias when considered against younger applicants.

In short, removing age as a consideration in SSDI determinations would not be a narrow technical adjustment or update of the system; it would be a substantive policy shift with direct implications for the scope of SSDI coverage, Medicare for disabled workers, and the redistribution responsibility of health-care expenses.

D. Scott Gordon, Virginia Disability Attorney

https://dsgordonlaw.com/social-security-disability/social-security-disability.html

Virginia HB 1921: A Legislative Push for Universal Paid Sick Leave

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Virginia came close to dramatically expanding paid sick leave protections in 2025, but House Bill 1921 ultimately fell victim to a gubernatorial veto that the legislature couldn’t override. The failed legislation highlights an ongoing debate in the Commonwealth about worker protections versus business flexibility.

The bill proposed extending paid sick leave to virtually all Virginia employees, building on a modest 2021 law that covered only home health workers. Under HB 1921, workers would have accrued one hour of paid sick leave for every thirty hours worked, capped at forty hours annually, with the ability to carry unused time into the next year. Sponsors estimated the change would have benefited approximately 1.2 million Virginians who currently lack any paid time off. The legislation passed both chambers along partisan lines before landing on Governor Glenn Youngkin’s desk in March 2025.

Supporters framed paid sick leave as both a public health necessity and an economic investment. They argued that workers shouldn’t have to choose between their health and their paycheck, pointing to research showing that paid leave reduces disease transmission, lowers employee turnover, and improves long-term productivity. Advocates emphasized that the COVID-19 pandemic exposed how lack of paid leave disproportionately harms low-income workers and creates preventable public health risks. They also noted that neighboring Maryland and the District of Columbia already have similar protections, and that Virginia’s forty-hour cap represented a modest requirement unlikely to burden responsible employers.

Opponents, particularly business organizations, raised concerns about imposing a one-size-fits-all mandate on Virginia’s diverse economy. They warned that requiring all employers to provide paid sick leave could create significant administrative and financial burdens, especially for small businesses operating on thin margins or still recovering from pandemic disruptions. Critics argued the mandate might lead employers to reduce hours, delay hiring, or even lay off workers to offset increased labor costs. Some framed the issue philosophically, contending that employment benefits should remain a matter of private negotiation rather than government mandate.

Governor Youngkin vetoed HB 1921 in March 2025, characterizing it as an inflexible statewide mandate that failed to account for Virginia’s varied business landscape. He argued the bill risked discouraging job creation and represented unnecessary government intrusion into private employment relationships. The House sustained the veto on April 2, 2025, leaving Virginia’s limited 2021 law intact. However, the close legislative votes suggest significant appetite for reform. Legislative observers expect the issue to resurface, possibly in modified form during the 2026 session. Future versions might include exemptions for very small employers, phased implementation timelines, or tax incentives to offset compliance costs—adjustments designed to address economic concerns while advancing worker protections.

D. Scott Gordon, Richmond Employment Lawyer

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Potential Expansion of Vicarious Liability for Virginia Employers

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A new Virginia law under Va. Code Section 8.01-42.6 potentially changes the legal landscape for subject employers, especially those in industries serving vulnerable populations. This legislation creates a new path for holding employers accountable for the harmful acts of their employees, even if those acts were intentional and fell outside the traditional “scope of employment.”

Previously, Virginia’s respondeat superior doctrine protected employers from liability for most intentional torts by its employees, such as assault or abuse if the act was not performed to benefit the employer. The new law introduces a different standard, allowing a plaintiff to hold an employer vicariously liable if the employee’s tortious conduct occurred while they had contact with a designated “vulnerable victim” and the employer failed to exercise reasonable care to prevent the harm. Vulnerable victims are defined as those at a substantial disadvantage due to a physical or mental condition, with the law specifically listing patients, residents of assisted living facilities, and passengers of certain carriers, among others.

This change places a greater risk on subject employers, who can no longer rely on the defense that an employee’s intentional act was personally motivated. Instead, a plaintiff can argue that the employer’s own negligence in hiring or supervision created the opportunity for the harm to occur. This shift particularly impacts healthcare and assisted living businesses. Patients and residents are per se vulnerable victims, heightening the importance of credentialing, staffing oversight, chaperone policies, incident reporting, and prompt corrective action to demonstrate reasonable care and control.

Virginia Employment Lawyer

EEOC Shifts Away from Disparate Impact Enforcement

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The Equal Employment Opportunity Commission (“EEOC”) is moving forward with a significant shift in workplace discrimination enforcement. By September 30, 2025, the agency seeks to administratively close all pending charges based solely on disparate impact theory, issuing “right to sue” letters that will send these cases directly into federal court. This move follows an April executive order, which instructed federal agencies to halt disparate impact enforcement “to the maximum extent possible.”  The EEOC frames the move as a broader realignment of federal enforcement priorities away from impact‑based theories and toward intentional discrimination. 

For those unfamiliar with the legal landscape, “disparate impact” addresses policies that appear neutral but disproportionately harm protected groups, such as hiring practices that screen out minority candidates, unnecessary degree requirements, or criminal background checks. Unlike disparate treatment cases that require proof of intentional discrimination, disparate impact claims focus on statistical patterns of harm.

The change in EEOC enforcement practices does not eliminate the disparate impact legal theory rooted in Griggs v. Duke Power and the Civil Rights Act amendments of 1991. However, the practical consequences are diverse. Traditionally, a plaintiff might benefit from administrative investigations that yield discoverable business records and vet employer defenses. With employers less likely to be subject to EEOC investigations and data gathering, cases will have to move abruptly into federal court, where plaintiffs must now shoulder the full burden of discovery and proof. Alternatively, the burden of investigation could fall upon comparable state agencies in jurisdictions that provide overlapping state remedies.

Nevertheless, Employers should not treat the EEOC directive as a license to cut compliance corners. They should continue to maintain and document disparate-impact analyses, job-relatedness defenses and validation studies for tests and standards. Administrative closure does not immunize against private suits or state enforcement.

Virginia Employment Lawyer