On April 11, 2020, Governor Ralph Northam signed yet another bill which fundamentally changes the employment law landscape in the Commonwealth of Virginia. HB798 is a comprehensive whistleblower protection law which prevents an employer from discharging, disciplining, threatening, discriminating against, or penalizing an employee because he or she:
- Reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law enforcement official;
- Participates in an investigation, hearing or inquiry requested by a governmental body or law enforcement official;
- Refuses to engage in a criminal act that would subject the employee to criminal liability;
- 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
- 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.
In addition to its broad scope, HB798 permits an employee to bring an action in state court within one year of the employer’s prohibited, retaliatory action. Further, the whistleblower protection law allows a prevailing employee to obtain remedies including injunctive relief, reinstatement, lost wages and benefits, and reasonable attorneys’ fees and costs.
From a practical standpoint, HB798 creates a new, broad wrongful discharge cause of action in Virginia. Prior to HB798, alleged whistleblowers had to rely on the Supreme Court of Virginia’s Bowman doctrine—the narrow public policy exception to Virginia’s at-will employment rule. In the four decades since Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985) was decided, the Court has recognized a wrongful discharge action in only three situations: 1) the employer violates a public policy enabling the exercise of an employee’s statutorily-created right; 2) the public policy violated by the employer is explicitly expressed in a statute and the employee is a member of the class of persons entitled to protection thereunder; and 3) the discharge is based upon an employee’s refusal to commit or participate in a criminal act.
HB798 turns Bowman on its head. Consider this hypothetical:
Cher is an administrative assistant at an accounting firm. Sonny is Cher’s co-worker. One day, in the presence of numerous co-workers, Sonny threatens Cher to the point where Sonny has to be restrained. Cher reports Sonny’s threats to management to no avail. Fearing for her personal safety, Cher obtains a Preliminary Protective Order against Sonny. Shortly thereafter, Cher’s supervisor at the accounting firm terminates her employment because she “no longer fits the vision of the organization.”
In a 2017 case with facts similar to the hypothetical, Francis v. National Accrediting Commission of Career Arts & Sciences, Inc., 293 Va. 167 (2017), the Court declined to extend Bowman and held that the Francis’ termination after she received a preliminary protective order against her co-worker did not violate public policy. Under Virginia’s new whistleblower protection law, however, the employee in the hypothetical would be protected and would have a state law cause of action against her employer.
Successful cases may not need to be that colorful. What about the assistant who is riding in the car with her boss and complains that he is speeding? What about refusing the sexual advances of a boss when one of you is married, i.e., refusing to commit adultery? Or the produce worker in the grocery store who complains that the store is keeping food on the shelves after the expiration date? The term “any violation of federal or state law or regulation” is very broad indeed.
Look for employees to file more and more whistleblower claims in state court where they can avoid the summary judgment proceedings that are so common in U.S. District Court, where many plaintiffs’ cases are lost.
John C. Cook and Broderick C. Dunn are partners in the Fairfax firm of Cook Craig & Francuzenko, PLLC. Their practice includes the representation of executives, employees, and small businesses in employment law matters and civil litigation. Follow them on Twitter @JohnCookVA and @broderick_dunn and connect with them on LinkedIN (https://www.linkedin.com/in/broderickdunn/) and (https://www.linkedin.com/in/john-cook-2300514/
