Legal Insider: Whistleblower Claims in Virginia

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

We represent employees in Virginia who have been terminated in retaliation for whistleblowing. Whistleblower cases are unique and present their own unique challenges.

Employees are advised to seek counsel as early in the process as possible if they believe that they have been terminated (or will be terminated) in retaliation for whistleblower activities.

Whistleblower Law in Virginia

In Virginia, if a whistleblower reports alleged wrongdoing or states that they intend to report it, this can subject the employer to a civil lawsuit for retaliation if it falls under certain criteria. While Virginia is an at-will state, and employees may be fired for any reason or no reason at all, exceptions can apply.

In the past 30 years, exceptions to this general rule have started to emerge in Virginia. One such exception involves employee termination in retaliation for whistleblowing.

The Virginia courts carved out this exception to the at-will doctrine in the 1985 case of Bowman v. State Bank of Keysville. Other rules on whistleblowing can apply to federal employees and state or local employees. This article focuses on private company employees in Virginia.

What Kind of Retaliation is Covered?

An employer may not terminate an employee for reporting an issue that relates to the public policy of Virginia. An employee has a potential claim for wrongful discharge when the basis for the discharge violates public policy.

In order to determine what constitutes public policy, Virginia courts have pointed to statutes to determine if an issue has been endorsed by the state (e.g., the right to collect unemployment compensation benefits if eligible) or prohibited (e.g., criminal laws prohibiting perjury).

Example: Employer is sued for a personal injury by a shopper in their department store. Employee Jim Smith is a witness to the injury. The employer asks the employee to lie in court so that they won’t be liable. Mr. Smith refuses to lie in court. Employee A testifies truthfully and is then fired.

Statutory Whistleblower Retaliation in Virginia

In addition to the exceptions carved out by the Virginia courts, the Virginia General Assembly has passed specific statutory protections for certain activities. Employees who engage in protected activities under laws in certain areas are also protected from retaliation. These include asbestos, lead, and home inspection contractors; occupational safety and health issues; and workers’ compensation.

However, because the Virginia assembly has not passed a general whistleblower protection statute, most workers have to rely on the exceptions carved out by the courts to pursue a whistleblower claim. The courts in Virginia have seen an increase in the number of these types of cases in recent years.

I believe that more cases will expand this doctrine as Northern Virginia grows and exerts influence in Richmond for these types of employment protections.

The most usual remedies for Bowman Whistleblower claims can include:

• Reinstatement
• Damages
• Lost Benefits
• Attorneys fees

Conclusion

If you are in need of employment law advice representation, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.