In brief:
Virginia’s new Whistleblower Protection Law creates a right to sue when an employer retaliates against an employee for reporting, opposing, or refusing to participate in illegal activity at work after July 1, 2020, or for supporting a co-worker in those situations.
To be protected, employees who refuse to obey an order to do something illegal must actually “inform the employer that the order is being refused for that reason.”
Employees only have one year after the retaliation to bring a lawsuit.
Most Virginians know that their state follows a harsh “at-will” employment rule for private-sector employees without written contracts. Generally, Virginia employers may fire their employees for virtually any reason—even if that reason is made-up, incorrect, or unjust. Most people assume that if they stand up to fraud or other illegal activity by co-workers or corporate officers, the law will protect them. But until recently, most Virginia private-sector employees who oppose or report general criminal activity or fraud at work had little or no protections if they were fired or disciplined in retaliation.
Until recently, Virginia whistleblowers only had protections in a handful of specific regulatory situations (Examples: illegality or retaliation involving asbestos, lead, and home inspection contractors; occupational safety and health regulations; workers’ compensation protections; and certain environmental compliance), or in situation where the criminal activity involved fraud on the government, or the shareholders of publicly held companies.
As of July 1, 2020, this has finally changed with the new “Whistleblower Protection Law.” Virginia Code section 40.1-27.3 prohibits any employer from retaliation (discipline, threats, termination) against an employee who engages in certain categories of protected activity—or anyone who supports such an employee. The law also covers protected activities more broadly than prior laws, by including not just official reports of illegality to state agencies or superiors, but also protecting employees who “refuses to engage in a criminal act” or “refuses an employer’s order to perform an action that violates” the law.
This last provision is especially encouraging to lawyers like me, because it resolves an injustice that has long plagued our ability to help good people who have suffered injustice for doing the right thing. I find great satisfaction in helping “underdog” employees courageous enough to stand up to supervisors who engage in illegal or criminal behaviors. We have litigated and settled cases involving retaliation in the unique contexts of false claims on the government or concealment of environmental regulatory violations, but the great majority of private sector employees have had no practical legal protection under Virginia state law. For instance, in Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), the Virginia Supreme Court appeared to create a pathway to protect employees from being fired for exercising rights protected by a statute—the so-called “Bowman claim.” But over the succeeding decades, Virginia placed more and more limitations on that right, to the extent that it was pretty much unavailable; modern lawsuits bringing a Bowman claim inspire nothing more than an eye-roll by most courts. Until now, we’ve had few options for protecting employees who get fired for saying “no” to orders by their supervisors to support something illegal, or to look the other way.
As of July 1, 2020, the Virginia Whistleblower Law appears to create meaningful protection for honest workers, and in much broader circumstances than Bowman ever could have. Taking the new law at face value, employees may stand up to just about any kind of illegal activity at the workplace, and employers must avoid adverse action against them or face potential civil liability.
But take note: There are important limitations on using the new Whistleblower law to bring a lawsuit. As in all cases, the injured employee has the traditional burdens of proving that any retaliation occurred because of the protected activity—no easy task when the employer controls all the records, and can give another excuse for the termination. The law also requires that before anyone is protected from retaliation for refusing to engage in illegal activity or follow illegal orders, that employee must have “inform[ed] the employer that the order is being refused for that reason.” In practice, this means that unless the employee can prove that before the retaliatory action occurred, the employee told the employer that the employee’s reason for objecting was illegality, then the employee has no lawsuit. Any employee who has the chance should also make sure this communication is in writing, and sent up the chain of command—verbal communications may qualify, but they are much harder to prove.
The law is not a magic fix. As a practical matter, the law does limit damages to actual economic losses. While the law does mention the vague term “other remuneration” when discussing damages, the reality is that employees who win one of these cases should not expect to get damages for “pain and suffering,” which is disappointing. But the court can order an offending company to reinstate the employee to the same job, to cease the illegal activities, and to pay the employee for actual economic losses (lost wages and benefits).
Finally, employees who suffer this retaliation must keep in mind that they only have one year from the date of the retaliation to bring a lawsuit—a short statute of limitations. If you have suffered retaliation at work since July 1, 2020 for opposing illegal activity or orders, you should immediately contact Munro Law PC or another Virginia employment lawyer to evaluate your rights.