1. What legal protection does Virginia provide private sector employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Virginia recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates an established public policy of Virginia. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Virginia courts will look to statutes to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Virginia statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Virginia’s public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Virginia General Assembly has adopted narrow statutory protections for certain activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: asbestos, lead, and home inspection contractors; occupational safety and health; and workers’ compensation. But because there is no general whistleblower protection statute, whistleblowers receive extremely limited protection under Virginia law.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged for a reason that violates an established public policy of Virginia. Virginia courts have recognized three situations where an employee may sue for wrongful discharge.
First, an employee may not be discharged for refusing to engage in a criminal act.
Second, if a statute creates a right and the employer violates the public policy that enables the exercise of that right, the employee may sue for wrongful discharge. For example, a Virginia law gives corporate shareholders the right to vote at stockholder meetings. The public policy behind the law would be frustrated if corporate employers could coerce employee shareholders to vote in a certain manner, such as by threats of reprisal.
Third, if an employer’s retaliatory action violates a public policy that is clearly expressed in a statute, the employee may sue for wrongful discharge. However, the employee must also establish that he or she is a member of the class of persons that the statute was designed to protect. So, for example, an insurance agent could not rely on the public policy expressed in Virginia insurance laws that are designed to protect the insured. On the other hand, if an employer discharges a female employee after she becomes pregnant, the employee can sue for wrongful discharge because Virginia has laws against gender discrimination and those laws are intended to protect female employees, among other persons.
These three categories are not mutually exclusive there can be overlap between the categories.
Asbestos, Lead, and Home Inspection Contractors: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint or cooperating in an investigation under Virginia laws concerning asbestos, lead, and home inspection contractors. Va. Code Ann. § 54.1-515.
Government Employees: A public employee may not be discharged (or discriminated against) in retaliation for disclosing wrongdoing by a government agency in good faith and upon a reasonable belief that the information is accurate. Va. Code Ann. § 2.2-3011.
Nursing and Assisted Living Facilities:An employee may not be discharged (or discriminated against) in retaliation for reporting improper care. Va. Code Ann. § 63.2-1730.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a safety or health complaint, testifying, or exercising a right under Virginia law concerning employee safety and health. Va. Code Ann. § 40.1-51.2:1.
Workers’ Compensation: An employee may not be discharged in retaliation for filing a workers’ compensation claim (or intends to file a claim), or testifying in a workers’ compensation proceeding. Va. Code Ann. § 65.2-308.
3. How do I file a whistleblower or retaliation claim in Virginia?
Generally: An employee may file a wrongful discharge lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. ⚖ If you believe you have a claim, you should contact a lawyer.
Occupational Safety and Health: An employee may file a complaint with the Virginia Department of Labor and Industry (DLI) Virginia Occupational Safety and Health (VOSH). The complaint must be filed within 60 days ⚖ of the retaliatory action. The DLI will then investigate your claim and may pursue legal action on your behalf. If the agency declines to pursue your claim, you can file a lawsuit in an appropriate court. If you believe you have a claim, you should contact the VOSH Discrimination Investigator at 804-371-4995 immediately. The DLI can also be reached at the following:
Virginia Department of Labor and Industry
13 South Thirteenth Street
Richmond, Virginia 23219-4101
Workers’ Compensation: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. ⚖ If you believe you have a claim, you should contact a lawyer.