Breaking Down the New Virginia Whistleblower Law

Image of whistle and gavel illustrating whistleblower lawVirginia has recently enacted new protections for whistleblowers who raise concerns about violations of state or federal laws or regulations. The new law becomes effective on July 1, 2020, and fills an important gap for employees who often had no protection under Virginia statutes and court decisions.

Previously, Virginia law had protected employees from retaliatory terminations for: making workplace safety and health complaints (Va. Code Ann. § 40.1-51.2.1, with a time limit of 60 days for retaliation complaints); making a worker compensation claim (Va. Code Ann. § 65.2-308): and raising concerns about asbestos, lead, and home inspection contractors (Va. Code Ann. § 54.1-515).

The Virginia Supreme Court recognized a limited exception to the “employment-at-will” doctrine in Bowman v. State Bank of Keysville, 331 S.E.2d 797, 801 (Va. 1985). The employee-shareholders at the State Bank of Keysville had protested unlawful interference in their statutory right to vote on a corporate merger free from duress and intimidation.

In the thirty-five years after Bowman, the Commonwealth’s Supreme Court has allowed employees to bring a wrongful termination tort claim in only three circumstances: (1) when “an employer violated a policy enabling the exercise of an employee’s statutorily created right”; (2) “when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy”; and, (3) when “the discharge was based on the employee’s refusal to engage in a criminal act.”  Rowan v. Tractor Supply Co., 263 Va. 209, 210-12 (Va.2002).

The new law prohibits employers from retaliating because:

  1. The employee or a person acting on his or her behalf reports in good faith a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
  2. The employee is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
  3. The employee refuses to engage in a criminal act that would subject the employee to criminal liability;
  4. The employee 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. The employee 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.

However, the new law denies protection if the employee:

  1. discloses data otherwise protected by law or any legal privilege;
  2. knowingly says something false or recklessly disregards whether a statement is true or false; or
  3. permits disclosures that would violate federal or state law or diminish or impair the rights of any person to the continued protection of confidentiality of communications provided by common law.

The statute is codified at Va. Code Ann. § 40.1-27.3 and requires that whistleblowers file their lawsuits within 1 year of each violation.

As part of title 40.1 of the Virginia Code, this new law is subject to this definition of an “employer”:

“Employer” means an individual, partnership, association, corporation, legal representative, receiver, trustee, or trustee in bankruptcy doing business in or operating within this Commonwealth who employs another to work for wages, salaries, or on commission and shall include any similar entity acting directly or indirectly in the interest of an employer in relation to an employee.

It appears that “employer” means only private sector employers, omitting employees of the Commonwealth or local governments.

This new law does not explicitly protect disclosures about dangers to public health or safety. This is an unfortunate omission in this era of COVID-19 when too many employers are pressuring employees into unsafe work conditions and too eager to fire complainers. Those employees concerned that a public health or safety issue might also be a violation of an applicable law or regulation could still find protection under this new law.

Our recent blog explains why this protection for workplace health and safety whistleblowers is so important. https://kcnfdc.com/blog/pandemic-reveals-a-hole-in-our-web-of-whistleblower-protections/

Successful whistleblowers who bring timely claims under the new Virginia law can ask the court for: (i) an injunction to restrain continued violations, (ii) reinstatement, and (iii) compensation for lost wages, benefits, and other remuneration, together with interest, reasonable attorney fees and costs.

KCNF DC also maintains a list of federal anti-retaliation laws that can provide additional avenues for relief: https://kcnfdc.com/most-legal-claims-have-time-limits/

This new Virginia statute could be an attractive remedy for private sector employees in Virginia. Both the Virginia General Assembly and the Virginia courts will have roles in deciding how many whistleblowers will find relief, and what that relief will be.

 

Whistleblower

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