Our Virginia whistleblower lawyers have substantial experience combating retaliation and obtaining relief for our clients. To find out if you have a claim under Virginia’s whistleblower protection law, click here or call us at 202-262-8959.
The Virginia Whistleblower Protection Law, codified at Va. Code § 40.1-27.3, provides broad protections against retaliation.
Who is protected under the Virginia Whistleblower Protection Law? ExpandThe 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.
What whistleblowing is protected under the Virginia Whistleblower Protection Law? ExpandProtected conduct includes:
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.
Are employees protected for raising a concern in the course of performing their job duties? ExpandThe 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.
Are there any exceptions to protected whistleblowing under the Virginia Whistleblower Protection Law? ExpandThe Virginia Whistleblower Protection Law clarifies that it does not:
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).
What acts of retaliation are prohibited under the Virginia Whistleblower Protection Law? ExpandThe 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.
Does the Virginia Whistleblower Protection Law bar preemptive retaliation? ExpandYes. 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.
What damages or relief can a prevailing whistleblower secure under the Virginia Whistleblower Protection Law? ExpandA 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:
The statute does not expressly authorize compensatory or punitive damages.
What are some differences between the Virginia whistleblower protection law and a Bowman wrongful discharge tort claim? Expand| Whistleblower Protection Statute | Bowman wrongful discharge tort | |
|---|---|---|
| protected activity | 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. | 1. When an employer violated a public 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 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. |
| exclusions from protected conduct | Whistleblower law 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. | None |
| scope of actionable retaliation | 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. | Termination and constructive discharge |
| individual liability | N | Y |
| statute of limitations | 1 year | 2 years |
| injunctive relief | whistleblower can obtain injunction to restrain a continued violation | N |
| back pay and other remuneration | compensation for lost wages, benefits, and other remuneration | Y |
| reinstatement | reinstatement to the same or an equivalent position held before the employer took the retaliatory action | N |
| compensatory damages | N | Y |
| punitive damages | N | Y |
In 2019, the National Law Review awarded Jason Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
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