Virginia Whistleblower Protection Law

The statute prohibits “an employer” from retaliating against “an employee” for engaging in specified forms of protected conduct, but it does not define those terms. Courts will likely apply the definition of “employee” from title 40.1 of the Virginia Code, i.e., “any person who, in consideration of wages, salaries or commissions, may be permitted, required or directed by any employer to engage in any employment directly or indirectly.” This definition excludes independent contractors, but a misclassified independent contractor could arguably bring a claim.

Protected conduct includes:

1. Reporting 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. Being requested by a governmental body or law enforcement official to participate in an investigation, hearing, or inquiry;
3. Refusing to engage in a criminal act that would subject the employee to criminal liability;
4. Refusing an employer’s order to perform an action that violates any federal or state law or regulation when the employee informs the employer that the order is being refused for that reason; or
5. Providing information to or testifying 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.

The inclusion of the phrase “reporting in good faith” in the first prong of protected conduct suggests that a whistleblower need not prove that they disclosed an actual violation of law. Instead, courts will likely apply a reasonable belief standard under which the whistleblower must prove that they subjectively believed that the conduct that they were reporting was illegal and that the subjectively held belief was “objectively reasonable,” i.e., the employee’s belief was reasonable in light of their training and experience.

If the statute is construed to protect only disclosures of actual violations of law, then employees would have a perverse incentive to delay reporting a potential violation until it has ripened to an actual violation. Limiting protection to disclosures of actual violations of law would be contrary to the public interest. The statute should be construed to encourage an employee to report an imminent violation, especially where such violation implicates public health or safety.

The statutory text appears to protect employees who blow the whistle in the course of performing their ordinary job duties in that a disclosure to a supervisor is protected. If the legislature intended to exclude duty speech, it could have carved out an explicit exception in the statute.

The Virginia Whistleblower Protection Law clarifies that it does not:

1. Authorize an employee to make a disclosure of data otherwise protected by law or any legal privilege;
2. Permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth; or
3. Permit 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.

Accordingly, employees should be cautious about blowing the whistle using trade secrets, confidential medical information, student education records, and information protected by the attorney-client, marital communication, and physician-patient privileges.

Courts construing the exclusion for disclosures made “in reckless disregard of the truth” would likely employ Virginia defamation precedent requiring proof that the person making the statement in fact entertained serious doubts as to the truth of their publication and actually had a high degree of awareness of probable falsity. See, e.g., Shenandoah Publ'g House, Inc. v. Gunter, 245 Va. 320, 324, 427 S.E.2d 370, 372 (1993).

The Virginia Whistleblower Protection Law proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. A mere threat to retaliate against a whistleblower (e.g., threatening to terminate the employee for reporting unlawful conduct or threatening to sue an employee for engaging in additional protected conduct) is actionable.
But the use of the phrase “compensation, terms, conditions, location, or privileges of employment” unfortunately suggests that post-employment retaliation might fall outside the scope of the statute. However, Virginia has a blacklisting statute barring an employer from “willfully and maliciously prevent[ing] or attempt[ing] to prevent by word or writing, directly or indirectly” a discharged employee from obtaining employment. Va. Code § 40.1-27.

The Virginia Whistleblower Protection Law does not define the causation standard. Presumably, courts will construe the term “because of” to require “but for” causation. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013). Note, however, that “but for” caution is not tantamount to sole factor causation. As Justice Scalia noted in Burrage v. United States, an act is a “but-for” cause “[even if it] combines with other factors to produce the result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back.” 571 U.S. 204, 211 (2014). Similarly, the Court recently held in Bostock v. Clayton Cty. that the plaintiff's protected activity or characteristic(s) "need not be the sole or primary cause of the employer’s adverse action." 590 U. S. __ (2020), slip op at *14. The “but for” causation standard "means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision." Id. at *6.

And the Fourth Circuit has held that Nassar did not alter the causation prong of a prima facie case of retaliation, i.e., a retaliation plaintiff need not prove “but for” causation as part of the prima facie case. Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243 (4th Cir. 2015). In other words, the causation burden will not be significantly more onerous than a motivating factor standard.

Yes. The second and fifth prongs of protected conduct protect not only traditional participatory activity (e.g., testifying in a government investigation), but also preemptive retaliation. If an employer takes a disciplinary action against an employee who is about to be interviewed by a government investigator (to dissuade the employee from revealing a violation of law to the government agency), the employee would have a claim under this new statute. In other words, the statute expressly bars preemptive retaliation.

A claim under the Virginia Whistleblower Protection Law can be brought within one year of the retaliatory adverse action. As Virginia civil procedure disfavors summary judgment, whistleblowers are more likely to get to trial in state court than in federal court. Employers will have difficulty obtaining summary judgment in Virginia circuit court because a motion for summary judgment cannot rely upon discovery depositions. See Va. Code § 8.01-420.

Although the scope of protected conduct and prohibited retaliation are broad, the remedies could be stronger.  A prevailing plaintiff can secure the following relief:

1. An injunction to restrain a continued violation;
2. Reinstatement to the same or an equivalent position held before the employer took the retaliatory action; and/or
3. Compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorneys’ fees and costs.

The statute does not expressly authorize compensatory or punitive damages.

• What laws protect whistleblowers in Virginia?
• Virginia Lawyers Representing Whistleblowers in Whistleblower Rewards and Whistleblower Retaliation Claims
• Are Whistleblowers in Virginia Eligible for Whistleblower Rewards or Bounties?
• Virginia Employment Lawyers Publish Article About Virginia Anti-Discrimination and Whistleblower Protection Laws

• Sarbanes-Oxley Act (protecting whistleblower disclosures about violations of SEC rules and regulations; violations of federal laws related to fraud against shareholders; or mail, wire, bank, or securities fraud).  Download our free ebook, Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.
• Taxpayer First Act (protecting whistleblowing about tax fraud or tax underpayment)
• Dodd-Frank Act (protecting whistleblowing to the SEC and CFTC)
• Whistleblower Protection Act (protecting whistleblowers in the federal government)
• False Claims Act and NDAA (protecting whistleblowers working for federal contractors)
• Energy Reorganization Act (protecting disclosures about nuclear safety or violations of Nuclear Regulatory Commission rules)
• Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (protecting disclosures about aviation safety)
• Surface Transportation Assistance Act (protecting whistleblower disclosures in the trucking industry about commercial motor vehicle safety)
• Consumer Financial Protection Act (protecting disclosures concerning consumer financial protection)
• Anti-Money Laundering Whistleblower Protection Law (protecting disclosures about violations of the Bank Secrecy Act)
• Federal Railroad Safety Act (protecting disclosures about rail safety and security)
• National Transit Systems Security Act (protecting transit employees from retaliation for disclosing a hazardous safety or security condition)
• Consumer Product Safety Improvement Act (protecting disclosures about consumer product safety)
• Food Safety Modernization Act (FSMA) (protecting disclosures about food safety)
• Criminal Antitrust Anti-Retaliation Act (protecting disclosures about criminal antitrust violations)
• Whistleblowers that have suffered retaliation in violation of whistleblower protection policies in corporate codes of ethics.