In July 2020, Virginia enacted its first comprehensive whistleblower protection law. Entitled the “Virginia Whistleblower Protection Law,” the law is a huge step for employees and provides protections consistent with other whistleblower statutes across the country.
Prior to this law, private sector employees in Virginia had limited protections as whistleblowers and were subjected to a convoluted body of common law, known as the Bowman doctrine. The Bowman doctrine is a notoriously confusing area of law, protects against wrongful termination of an employee in violation of an expressly articulated public policy, found in a statute, where the employee was “clearly a member of that class of persons directly entitled to the protection enunciated by the policy.” The Bowman doctrine thus created barriers for employees who felt they were retaliated against, but not terminated, and for employees who were terminated, but could not point to a clearly stated public policy in a Virginia Statute as the basis for retaliation.
What protections does the Virginia Whistleblower Protection Law offer?
Virginia’s Whistleblower Protection Law goes well beyond the Bowman wrongful discharge doctrine. Under the law, a private employer cannot “discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment” because the employee engaged in certain types of protected conduct.
What types of activities are considered protected conduct under the whistleblower law?
In order to be protected by the Virginia Whistleblower Protection Law, an employee will need to have engaged in a certain type of protected activity. The law identifies the following five general types of protected conduct:
- Reporting a violation of federal or state law or regulation to a supervisor, governmental body, or law-enforcement official;
- Participating in a governmental or law-enforcement investigation;
- Refusing to engage in a criminal act;
- Refusing an employer’s order to violate any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason;
- Providing information or testimony before a governmental body or law enforcement official conducting an investigation into an alleged violation by the employer.
Unlike the Bowman doctrine, the Virginia Whistleblower Law does not include individual liability for potential violations of state or federal law. Additionally, keep in mind that the Virginia Whistleblower Protection Law has a statute of limitations of one year, while a Bowman claim has a statute of limitations of two years.
What remedies can I get under the Virginia Whistleblower Protection Law?
The Virginia whistleblower law provides potential remedies for employees who have been retaliated against for their protected activity. Specifically, the whistleblower law provides for injunctions, reinstatement, compensation for lost wages and benefits, and reasonable attorney fees and costs. While the opportunity to recover remedies is a plus, employees should be aware that Virginia courts do not have a standard in place for awarding remedies, and historically grant low damages in employment cases. Notably, an employee cannot recover compensatory or punitive damages under the Virginia whistleblower law, unlike under the Bowman doctrine.
Case law involving the Virginia Whistleblower Protection Law is rapidly developing. In a recent case, Chenault v. RBI Corp., Hannover Circuit Court (Kelly), Oct. 22, 2021, a plaintiff alleged that he was terminated for his complaints to his employer about unsafe working conditions related to Covid-19, and the employer’s failure to follow Virginia Department of Labor and Industry Emergency Temporary Standard 16VAC25-220. The Circuit Court for Hanover County held that the plaintiff did not clearly report a violation of federal or state law or regulation to his supervisor when he “voiced concerns” and “objected to the cavalier attitude” of his employer. However, the court did find that this claim was sufficient to establish a common-law Bowman claim, because of the public policy established in the new Virginia whistleblower statute, which was intended to protect employees who make disclosures regarding their employers’ violation of state law or regulations, such as Executive Order 16VAC25-220.
The new Virginia whistleblower statute, coupled with the old Bowman doctrine, shows signs of progress towards protecting employees in Virginia. However, only time will tell how this new era of employment case law in Virginia will evolve.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
Published: June 10, 2022 | By: Madison Kewin, Associate, Alden Law Group
 See Lockhart v. Commonwealth Education Systems Corp., 247 Va. 98,439 S.E.2d 328 (1994); Bailey v. Scott‐Gallaher, Inc., 253 Va. 121, 480 S.E.2d 502 (1997).