Where an employee sued a company that issued his commission checks for unpaid commissions under the Virginia
Wage Payment Act, but there no allegations plausibly showing that company was his “employer,” that company was dismissed from the suit.
Michael Damon alleges that defendants failed to pay earned sales commissions in violation of the Virginia Wage Payment Act, or VWPA. Extremity Care LLC, or EC, has filed a motion to dismiss.
EC contends that defendant Tiger Aesthetics Medical LLC, or TAM — not EC — was plaintiff’s “employer” as defined under § 40.1-2 of the VWPA, and therefore EC cannot be liable under the statute. Plaintiff counters that EC does qualify as an employer because it paid his commissions, and such act — standing alone — is sufficient for EC to be considered an employer.
Thus, the issue before the court is whether EC qualifies as plaintiff’s employer based on the sole factual allegation that EC issued plaintiff’s commission checks. The court concludes that this allegation, without more, is insufficient to plausibly establish that EC qualifies as his employer under
§ 40.1-2 of the VWPA, and thus plaintiff has failed to state a claim against EC.
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