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Unpaid commissions in Virginia: earned is earned

Commissions earned under the employment agreement are wages under § 40.1-29; the written plan controls when a commission is earned.

Employers usually argue the commission was not "earned" yet. The answer is in the plan's own words: if every condition the plan sets had been satisfied before you left, the timing clause moves the payment date, it does not erase the debt.

Statute
Va. Code § 40.1-29
If fired
On termination of employment the employee must be paid all wages due for work performed, on or before the date the employee would have been paid had employment continued (Va. Code § 40.1-29).
If you resigned
Resignation follows the same rule: wages for work performed are due on or before the date you would have been paid had you stayed.
Late-pay penalty
Virginia does not add a liquidated-damages formula for the employee. § 40.1-29 instead provides civil penalties payable to the Commonwealth, back-wage restitution ordered by the Commissioner or a court, and the Commissioner's power to investigate and issue subpoenas.
PTO
Virginia treats earned vacation as wages when the employer's policy creates the right; without a written forfeiture policy the balance is treated as payable at separation.
Small claims limit
$5,000 for an individual
Last verified
2026-11-03 two sources agree

What to put in the file before you write anything

  1. The commission plan or comp letter, including every amendment, and the exact definition of when a commission is earned.
  2. Deal records showing the sale closed, the customer paid, or whatever condition the plan requires.
  3. A calculation of each commission claimed, with the deal, the rate and the date the condition was met.
  4. Any email where a manager confirmed the amount — the most persuasive document in most commission disputes.

What the letter does that a phone call cannot

A demand letter fixes three things at once: the amount, the date each item was due, and the date the employer was on notice. Every forum that can help you — the Virginia Department of Labor and Industry, a small claims judge — starts from those three facts. The letter is built from Va. Code § 40.1-29 and your own figures, so the deadline it states is the one that applies to your separation, not a generic thirty days.

If the amount fits inside $5,000, small claims court is usually faster than an agency queue; if it does not, the agency route and a demand first is the cheaper path.

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Questions

Are commissions wages in Virginia?

Commissions earned under the employment agreement are wages under § 40.1-29; the written plan controls when a commission is earned.

My employer says commissions are paid only to current employees. Is that enforceable in Virginia?

A clause that forfeits commissions already earned is the clause most often struck down when challenged. The employer can usually set the timing of payment; it is much harder for it to keep money the plan says you earned.

Other situations in Virginia

being fired · resigning · a layoff · unused PTO · all Virginia rules

Reviewed 2026-11-03 against the sources listed on the Virginia page. This is a self-help document tool, not legal advice, and no outcome is guaranteed.