Asplundh Tree Expert v. Pacific Employers

A group of employees filed an action against the Commonwealth and the Department of Corrections, seeking to recover for unpaid overtime under a statute enacted in 2021 providing a right for such recovery. When the General Assembly comprehensively overhauled the statute shortly after its enactment, however, it repealed the waiver of sovereign immunity. The present action was filed after the General Assembly repealed the original waiver of sovereign immunity. In response to the complaint, the Commonwealth filed a plea of sovereign immunity. The circuit court denied the plea, and the Commonwealth filed an interlocutory appeal to this Court under Code §§ 8.01-626 and 8.01-670.2. The issue is treated as one implicating subject matter jurisdiction, and in the present appeal the judgment of the circuit court is reversed, and final judgment is entered in favor of the Commonwealth.

The language of the Virginia wage theft statute, Code § 40.1-29, specifically lists wages and salaries, but it does not expressly apply to commissions, and its context does not support an interpretation that extends the statute's protections to commissions. Resting its contrary conclusion on the remedial purpose of the statute, past decisions interpreting the term "wages" in other contexts, and an interpretation by an administrative agency contained in a field manual, the Court of Appeals reversed the judgment of the circuit court concluding that Code § 40.1-29 did not apply to commissions. However, neither the plain meaning of the terms "wages" or "commissions," nor the use of the term wages in the context of Code § 40.1-29, suggests that the use of that term sweeps in the concept of "commissions," and contentions to the contrary, while compelling, are properly addressed to the legislature. Therefore, the most plausible reading of Code § 40.1-29 is that the General Assembly did not intend for the wage theft statute to apply to commissions. The judgment of the Court of Appeals is reversed.