A Virginia law that went into effect July 1 creates what has been described as “whistleblower” protections for employees working for any employer.
It also creates a private right of action for violations.
“An employer shall not 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,” the law states.
The law provides protections to the employee or someone acting on behalf of the worker if the employee:
- Reports 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;
- Is requested by a governmental body or law enforcement official to participate in an investigation, hearing or inquiry;
- Refuses to engage in a criminal act that would subject the employee to criminal liability;
- Refuses an employer’s order to perform an action that violates any federal or state law or regulation and the employee informs the employer that the order is being refused for that reason; or
- Provides information to or testifies 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.
Employees lose protection if they:
- Make a disclosure of data otherwise protected by law or any legal privilege;
- Make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth; or
- Make 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.
The employee may bring a civil action in state court within one year of the alleged retaliatory action.
The employee can be awarded damages to include an injunction to restrain continued violations; the reinstatement of the employee to the same position held before the retaliatory action or to an equivalent position; and compensation for lost wages, benefits and other remuneration, with interest, as well as reasonable attorney fees and costs.
The law does not specifically provide for compensatory damages (for instance for pain and suffering) or punitive damages.
The new law essentially revives a long-standing civil action that formerly could be brought against employers for violation of Virginia’s public policy, but courts limited these actions and strictly applied them, so legal actions were rarely brought.
The statute uses broad statements such as “violation of any federal or state law or regulation.” This likely will create significant state court litigation.
For example, an employee riding with her supervisor who is speeding and the employee files a complaint against the supervisor with the company for this action. The employee is then terminated for reporting the supervisor’s misconduct. Under the new law the worker could file a civil legal action under the new law, whereas previously the court dismissed a similar action.
Legal action also may include refusing sexual advances of a boss when one of you is married, as adultery in Virginia is still illegal.
With the new mandatory safety regulations approved in Virginia to curb COVID-19, workers might be protected as whistleblowers if they were to report violations pursuant to the law.
Employers need to establish a whistleblower protection policy and train managers to understand their obligations to report concerns and not retaliate.
Employers should immediately investigate all complaints of misconduct and retaliation.
Before terminating an employee or taking negative action, employers should inquire from the supervisor if the employee has made any such complaints.
A best practice is to establish an internal or external ethics officer to address these concerns.