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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
- The commission plan or comp letter, including every amendment, and the exact definition of when a commission is earned.
- Deal records showing the sale closed, the customer paid, or whatever condition the plan requires.
- A calculation of each commission claimed, with the deal, the rate and the date the condition was met.
- 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.
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.