Whistleblower Laws in Virginia
Under existing law and caselaw in the Commonwealth of Virginia, a whistleblower is an employee who is aware of their employer’s wrongdoing and then reports it. If a whistleblower reports alleged wrongdoing/illegal conduct or communicates that they intend to report it, employer retaliation frequently does occur and can be unlawful and subject the employer to a lawsuit.
As most employees are generally aware, Virginia is considered an at-will state, which means that they may be terminated at any time for any reason because they are “at-will.” However, in the past 20 years (and even more likely so as we move forward into the future), exceptions to this general rule have started to emerge. One such exception involves severe employee discipline (usually termination) caused by whistleblowing.
Virginia Supreme Court Establishes Whistleblower Retaliation in 1985
The Virginia Supreme Court carved out the whistleblower exception to the at-will doctrine in the 1985 case of Bowman v. State Bank of Keysville. This exception, according to Bowman, typically is governed by (1) statutory law; or (2) case law (decisions by the courts). Rules on whistleblowing retaliation can also depend on whether or not an individual is a federal employee, state or local employee or an employee working for a private company.As mentioned above, however, this article focuses on private company employees in Virginia. The Bowman exception was confusing and pretty limited to termination cases.
Virginia Passes New Whistleblower Laws in 2020
In July of 2020, Virginia passed a series of laws referred to as the Virginia Whistleblower Protection Law, which expanded whistleblower rights for employees in Virginia. The new whistleblower protections in Virginia went beyond what Bowman had protected and offered a number of new rights.
What Kind of Retaliation is Covered?
The Virginia Whistleblower Protection Law provides the following protections to employees, in VA Code § 40.1-27.3:
An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment, because the employee:
1. Or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
3. Refuses to engage in a criminal act that would subject the employee to criminal liability;
4. Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
5. Provides information to or testifies before any governmental body or law-enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.
These new rights went much further than the previous Bowman case law doctrine in protecting whistleblowers.
Remedies for Bowman Whistleblower Claims
Under the Virginia Whistleblower Protection Law, the following remedies for violations include a number of remedies employees such as:
(1) reinstatement of the employee to the same position held before the whistleblower retaliation;
(2) compensation for lost wages;
(3) compensation for lost benefits;
(4) interest; and
(5) reasonable attorneys fees.
