Virginia is an at-will employment state. In other words, unless you have a valid employment contract, your employer can fire you at any time and for any reason or no reason at all. The only exception is that your employer can’t fire you for an illegal reason. Under Virginia’s current laws, there are very few illegal reasons for firing someone. For example, Virginia doesn’t have a statute that gives you the right to sue your employer for whistleblower retaliation.
However, that will change on July 1, 2020, when the new Virginia whistleblower law goes into effect. Here’s what you need to know about the new law:
Who is covered by the new Virginia whistleblower law?
The law applies to employers and employees in Virginia. “Employer” means any individual, partnership, corporation, or similar entity:
- That does business or operates in Virginia and
- Employs another to work for wages, salary, or commissions
“Employee” means any person who:
- Is permitted, required, or directed to work for any employer
- In exchange for wages, salary, or commissions
Are you a whistleblower under Virginia’s new law?
Beginning on July 1, 2020, you can file a lawsuit against your employer in court for whistleblower retaliation. However, only certain activity and disclosures account as protected whistleblowing under the law:
- Making a protected disclosure by complaining to a supervisor, any government body, or a law enforcement official that your employer violated a federal or state law or regulation
- Being asked by a government or law enforcement to participate in an investigation, hearing, or inquiry
- Refusing to engage in a criminal act that would subject you to criminal liability
- Refusing to follow your employer’s order to perform an action that would violate federal or state law or regulation, if, at the time you refuse, you tell your employer you won’t follow the order because it violates a law or regulation
- Providing information to or testifying before any government body or law enforcement official in an investigation, hearing, or inquiry about an employer’s alleged violation of federal or state law or regulation
However, there are a few exceptions regarding protected disclosures. Reporting your employer for violating a federal or state law or regulation is not a protected disclosure (i.e., not whistleblowing) if any of the following applies:
- You disclose information that is protected from disclosure by law or legal privilege
- You either know your disclosure is false or don’t care if it’s true or not
- Your disclosure violates federal or state law or impairs any person’s right to confidentiality
Did your employer retaliate against you?
Virginia’s new law prohibits employers from taking the following actions to retaliate against whistleblowers:
- Discriminate against
- Take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment
How do I file a whistleblower retaliation lawsuit?
Under the new law, you can file a lawsuit in the general district court or circuit court where you work. You must file within one year of the retaliation.
What damages can I recover for whistleblower retaliation?
If you prove that your employer retaliated against you for whistleblower retaliation, the court may award you:
- Reinstatement to your job
- Lost wages, benefits, and other compensation, plus interest
- Reasonable attorney fees and costs
Can I file a whistleblower lawsuit without an attorney?
You don’t have to have an attorney to file a lawsuit. However, if you believe you are the victim of whistleblower retaliation, it may be helpful to consult an experienced employment attorney. An attorney can determine whether you engaged in protected activity and whether your employer violated Virginia’s law. Also, a lawyer can advise you on the strengths and weaknesses of your case and explain the damages you could recover.
If you have questions about whistleblower retaliation, Alan Lescht and Associates, P.C., can help. Our attorneys represent state and local government workers and private-sector employees in Virginia. We handle employment cases involving whistleblower retaliation, discrimination, wrongful termination in violation of public policy, contract disputes, government investigations, and other workplace issues.