By John V. Berry, Esq., www.berrylegal.com

Our law firm represent private sector, county, city and state employees in Virginia who have been fired or disciplined at work in regards to their whistleblowing activities. Whistleblower cases are unique and present their own challenges. Employees are advised to seek counsel as early in the process as possible if they believe that they have been disciplined for whistleblowing. Additional rights apply to government employees, but this article focuses on private sector employees in Virginia.

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.

What Kind of Retaliation is Covered?

The Bowman doctrine is relatively new and evolving in Virginia.  Generally, the more severe the discipline (i.e. termination), the more likely that it will be considered a form of retaliation.  An employee has a potential claim and may file suit for wrongful discharge when the motivation for the discharge violates public policy or statute. In order to determine what constitutes public policy,

Virginia courts have pointed to statutes to determine if an issue has been endorsed (e.g. the right to collect unemployment compensation benefits if eligible) or prohibited (e.g. criminal laws prohibiting perjury). One example is a situation where an employee is fired and files for unemployment compensation. The employer asks a co-worker to lie at the hearing in order to help defeat the employee’s claim for benefits. The co-worker refuses to lie, telling the employer that it is unlawful to lie under oath. The co-worker testifies truthfully and then is fired.  This could form the basis of an unlawful whistleblower claim.  There are numerous other types of examples of disclosures that may qualify.  

Whistleblower Retaliation in Virginia Statutes

In addition to those exceptions carved out by the Virginia courts, the Virginia General Assembly has passed narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation. These statutory protections can include asbestos / lead, and home inspection contractors, workers’ compensation and occupational safety and health.

The Virginia Fraud and Abuse and Whistleblower Protection Act protects state employees who have reported instances of fraud, wrongdoing or abuse by state agencies or contractors. Under Virginia Code § 2.2-3010 and Virginia Code § 2.2-3011, State employers may not threaten, retaliate, discharge, or discriminate against whistleblowers.

However, the Virginia assembly has not yet passed a general whistleblower protection statute so most workers have to rely on the exceptions carved out by the courts to pursue a whistleblower claim. I believe that this will change as Northern Virginia grows and exerts influence in Richmond for these types of employment protections. Eventually, most states, and Virginia, will have more comprehensive whistleblower retaliation laws.

Remedies for Bowman Whistleblower Claims

The most usual remedies for Bowman Whistleblower claims can include the following potential remedies:

(1) reinstatement;

(2) damages,

(3) lost benefits;

(4) attorneys fees; and

(5) other relief that the court sees fit to grant.

Conclusion

If you are in need of representation or legal advice in regards to a whistleblower claim, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.