Wrongful Termination in Virginia
0July 20, 2023 by Tom Roberts, Esq.
Do I have a case for wrongful termination in Virginia?
What is an "At-Will" Employee?
If you do not have a contract specifying the duration or term of your employment or limiting the circumstances in which you may be terminated, then you are an “at-will” employee.
Termination of an "at-will" employee in Virginia
An “at-will” employee may be terminated at any time for any reason as long as the termination (1) does not violate the strong public policy of Virginia articulated in a Virginia statute or the Virginia Constitution, or (2) violate Federal law.
Bowman Claim in Virginia for Unlawful Termination or Wrongful Termination or Wrongful Discharge
Virginia recognized the common law tort of wrongful discharge or wrongful termination in 1985 in the case of Bowman v State Bank of Keysville, stating that “discharges which violate public policy, that is, the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general, are actionable.”
To be actionable, the employee must show:
- the discharge violates the clear and unambiguous public policy of Virginia expressed in a statute or the constitution.
- the employee is a member of the class of persons who are intended to be protected by the public policy that was violated
- the termination was directly related to the public policy violation and not for poor performance, personality conflicts, etc.
Federal Laws protecting employment in Virginia
Examples of Federal laws protecting job status, Title VII – discrimination based upon race, color, religion, sex and national origin. Other protected classes, age, pregnancy, retaliation, etc.
- See
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. - The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employment discrimination against individuals who are 40 years of age or older.
- The Americans with Disabilities Act of 1990 (ADA) prohibits employment discrimination against individuals with disabilities.
- The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employment discrimination based on genetic information.
- The Pregnancy Discrimination Act of 1978 (PDA) prohibits employment discrimination against pregnant women.
- The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take unpaid leave for certain family and medical reasons.
- The Worker Adjustment and Retraining Notification Act of 1988 (WARN) requires employers with 100 or more employees to provide notice of plant closings and mass layoffs.
Examples of reasons that do not make the termination unlawful under Virginia common law (Bowman Claim):
NOTE: There may be statutory claims, e.g., whistle blower statute – § 2.2-3011
- The termination is unfair
- The employer was mistaken
- The employer is stupid
- The employer didn’t like me
- The employer lied
- It wasn’t my fault
- The employer didn’t warn me
- The employer didn’t explain why I was terminated
- I am a whistle blower (but see Va. § 2.2-3011 for statutory claim)
- I had a right to file criminal charges
- I had a right to seek a protective order
- Somebody lied about me
Explanation of Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985)
In Bowman, the employee was fired when she did not vote her bank shares the way her boss instructed her to do so – and she was permitted to bring a tort claim for unlawful termination. Former Code § 13.1-32 (currently codified in Code § 13.1-662) gave shareholders the right to vote their shares. To fully realize the public policy underlying the shareholders’ statutory right, shareholders had to be allowed to vote such shares free from duress or intimidation. Thus, we concluded that the employer’s actions in discharging the employees violated the public policy that shareholders are entitled to vote their shares free of duress or intimidation reflected in the right conferred on the shareholder/employee by the statute. Id at 540, 331 S.E.2d at 801 To fully realize the public policy underlying the shareholders’ statutory right, shareholders had to be allowed to vote such shares free from duress or intimidation. Thus, Virginia Supreme Court concluded that the employer’s actions in discharging the employees violated the public policy that shareholders are entitled to vote their shares free of duress or intimidation reflected in the right conferred on the shareholder/employee by the statute. Id. at 540, 331 S.E.2d at 801
Notes on the Virginia narrow exception to employment at will
- wrongful termination is a tort and tort principles apply not contract law.
VanBuren v. Grubb, 284 Va. 584, 592 - refusal to engage in a criminal act–at-will employee who is discharged based on a refusal to engage in a criminal act may have a valid cause of action for wrongful discharge. Mitchem v. Counts, 259 Va. 179, 190, 523 S.E.2d 246, 252 (2000). Robinson v. Salvation Army, 292 Va. 666, 670
- wrongful termination is a tort and tort principles apply not contract law.
- No employment right to file and press criminal charges or to participate in the legal processes by virgue of Va Code § 18.2-460.
Rowan v. Tractor Supply Co., 263 Va. 209, 215
- No employment right to seek a protective order –
- – Bowman does not recognize “a generalized cause of action for the tort of ‘retaliatory discharge.'” Miller, 234 Va. at 467-68, 362 S.E.2d at 918. Unlike in Bowman, where the public policy existed to protect the exercise of the statutory right to vote one’s shares, here there exists no corresponding public policy in the Protective Order Statutes protecting the exercise of the right to seek a protective order.
Francis v. Nat’l Accrediting Comm’n of Career Arts & Scis., Inc., 293 Va. 167, 174.
- No employee whistle blower protection – generalized, common-law “whistleblower” retaliatory discharge claim is not recognized by Virginia.
Dray v. New Mkt. Poultry Prods., Inc., 258 Va. 187, 191
- The Virginia Human Rights Act (VHRA) may not be used for a Bowman tort claim – the statute expressly limited actions based on violations of the policies reflected in the VHRA
Conner v. National Pest Control Ass’n, 257 Va. 286, 289
Virginia Statutory Whistle Blower Protection
While Virginia’s common law has no generalized whistleblower retaliatory discharge claim, there are statutory protections.
For example:
§ 2.2-3011. Discrimination and retaliatory actions against whistle blowers prohibited; good faith required; remedies.
A. No employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower whether acting on his own or through a person acting on his behalf or under his direction.
B. No employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower, in whole or in part, because the whistle blower is requested or subpoenaed by an appropriate authority to participate in an investigation, hearing, or inquiry by an appropriate authority or in a court action.
C. To be protected by the provisions of this chapter, an employee who discloses information about suspected wrongdoing or abuse shall do so in good faith and upon a reasonable belief that the information is accurate. Disclosures that are reckless or the employee knew or should have known were false, confidential by law, or malicious shall not be deemed good faith reports and shall not be protected.
D. In addition to the remedies provided in § 2.2-3012, any whistle blower may bring a civil action for violation of this section in the circuit court of the jurisdiction where the whistle blower is employed. In a proceeding commenced against any employer under this section, the court, if it finds that a violation was willfully and knowingly made, may impose upon such employer that is a party to the action, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $500 nor more than $2,500, which amount shall be paid into the Fraud and Abuse Whistle Blower Reward Fund. The court may also order appropriate remedies, including (i) reinstatement to the same position or, if the position is filled, to an equivalent position; (ii) back pay; (iii) full reinstatement of fringe benefits and seniority rights; or (iv) any combination of these remedies. The whistle blower may be entitled to recover reasonable attorney fees and costs. No action brought under this subsection shall be brought more than three years after the date the unlawful discharge, discrimination, or retaliation occurs. Any whistle blower proceeding under this subsection shall not be required to exhaust existing internal procedures or other administrative remedies.
E. Nothing in this chapter shall prohibit an employer from disciplining or discharging a whistle blower for his misconduct or any violation of criminal law.
F. No court shall have jurisdiction over an action brought under § 8.01-216.5 based on information discovered by a present or former employee of the Commonwealth during the course of his employment unless that employee first, in good faith, has exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and unless the Commonwealth failed to act on the information provided within a reasonable period of time.
CAUTION
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO CREATE AN ATTORNEY CLIENT RELATIONSHIP. NOTHING HEREIN SHALL BE DEEMED TO BE LEGAL ADVICE TO YOUR PARTICULAR CIRCUMSTANCES!
Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, PC
105 S 1st Street
Richmond, VA 23219
804-783-2000
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