Virginia’s Exceptions To At-Will Employment

Article Summary

Are you a Virginia employee who feels unfairly fired? You may think there’s no recourse for you under Virginia’s at-will employment system, but there are ways for you to fight against an unfair termination. Bowman claims and the Virginia Whistleblower Protection Law can provide remedies if your termination is related to a public policy violation.

When people hear the words “at-will employment,” they sometimes think this means they’re at the mercy of their employers. It’s a common misunderstanding that at-will means you can be fired at any time for any reason at all. This is not the case.

It is true that employers in at-will employment states, such as Virginia, have the discretion to fire their employees for a wide range of reasons. They might decide to fire someone for poor performance or budget cuts. Employers are also able to fire employees for no reason. This can make many employees feel blindsided or unfairly terminated.

However, this broad discretion does not exempt employers from following the law. At-will employment means employees can be fired for many or no reasons — but not for illegal reasons. At-will or not, the law is still the law, and the law is still there to protect employees from mistreatment such as discrimination or retaliation.

Employees who have been fired for illegal reasons might be able to file a lawsuit for wrongful discharge (also known as wrongful termination or wrongful dismissal). A wrongful discharge case generally begins when an employee is fired for engaging in protected activity. Perhaps you raised concerns about a workplace safety hazard or refused to submit an inaccurate form to a government agency. Protected activity can look like an employee asserting their own legal rights or pushing back against an employer attempting to violate public policy. Public policy, depending on the state, can include both state and federal constitutions, statutes, regulations, and judicial opinions.

Virginia recognizes public policy violations as a key exception to at-will employment. Previous court cases and state law establish situations in which it would be illegal to fire an employee.

The Bowman Claim

One of the earliest cracks in Virginia’s at-will system came from a 1985 case brought before the Virginia Supreme Court: Bowman v. State Bank of Keysville.¹

In Bowman, a conflict arose when some bank employees, who were also stockholders, did not vote in favor of a proposed merger.² The employees were fired in retaliation. They were at-will employees, but the court nonetheless found that the terminations violated Virginia’s public policy.³ The court’s decision made it clear that an employer can’t use the threat of termination to control how a shareholder votes.⁴

The Bowman decision gave Virginia employees the tort of wrongful discharge, a narrow but available pathway to fight against an unfair termination. There are three recognized situations in which an employee may have what’s called a Bowman claim:

1. The employee was fired for exercising a statutorily created right, such as using workers’ compensation benefits;
2. The employee was fired for refusing to engage in a criminal act; or
3. The employee’s termination was related to a public policy explicitly expressed in a Virginia statute, which also contains protections to which the employee is entitled.⁵

The last situation only applies when an employee is fired for doing something required by law or an employer, in terminating their employee, breaks a statute meant to protect the employee.⁶ In either case, the employee would need to identify the specific statute that was violated.⁷ They would also need to demonstrate that the statute clearly establishes protections for people such as the employee.

Bowman claims allow an employee to sue not only their employer but also potentially the individual person (typically a supervisor) who engaged in unlawful conduct and caused their termination.⁸ The deadline to file a Bowman claim in court is two years after the employee’s termination.

Successful Bowman claims can address both the employer’s misdeeds and the employee’s actual losses in the form of punitive and compensatory damages.⁹ Punitive damages are intended to punish illegal actions and deter similar behavior in the future, while compensatory damages are meant to compensate employees for emotional or reputational harm.

Punitive damages are only awarded in rare cases, however. The employer’s actions would have to be more than a mistake or poor judgment. An employee would have to be able to prove that their employer acted with reckless indifference or a conscious disregard for their rights.¹⁰

Virginia Whistleblower Protection Law Claim

Employees who have reported legal violations may also be able to bring a reprisal claim under the Virginia Whistleblower Protection Law (VWPL), which was enacted in 2020.¹¹ The VWPL states that an employer cannot fire or otherwise retaliate against employees who:

• Refuse to engage in a criminal act;
• Refuse to perform an act that violates a federal or state law or regulation;
• Make a good faith report of a violation of any federal or state law or regulation to a supervisor, government body, or law enforcement; or
• Are requested by or provide information to a governmental body or law enforcement official conducting an investigation, hearing, or inquiry into an alleged federal or state law violation by the employer.¹²

Employees pursuing a VWPL claim must be specific when identifying their employer’s legal violation. Courts have found that general complaints or expressions of concern — such as merely citing “misconduct” and “unethical” practices — is not specific enough to support a VWPL claim.¹³ The employee would have to describe the employer’s illegal behavior in detail or identify a particular law that was violated.¹⁴

An employee raising a VWPL claim must file in court within one year of the retaliatory action.¹⁵ There are currently no laws or case rulings to determine whether the VWPL can be extended to sue individual supervisors.

With respect to remedies, the VWPL allows a court to award: reinstatement; injunctive relief, which is an order requiring the employer to stop certain actions or take specific steps; compensation for lost wages, benefits, and other remuneration; and reasonable attorneys’ fees and costs.

Bowman claims vs. VWPL claims

Bowman claims and reprisal claims under the VWPL differ in several respects. Employees whose claims fall under a Bowman claim and the VWPL should consider pursuing both to maximize the potential remedies they may receive. Gaps in one claim can be handily filled by the other, allowing an employee to cover all their bases.

The remedies available under each type of claim vary. Emotional distress and punitive damages are generally not available under the VWPL, but attorneys’ fees can be recovered. In contrast, Bowman claims allow for punitive damages but not attorneys’ fees.

Pursuing both claims (if applicable) also gives one the ability to cast a wider net over who’s liable for their termination. Suing both the employer and the individual supervisor who caused the wrongful discharge may not be possible under the VWPL, but courts do permit Bowman claims against both.

Bowman claims, however, are usually the more challenging pursuit. The circumstances that allow for a Bowman claim are narrow, and courts carefully review the facts during the initial stages of a lawsuit to ensure the claim is valid. VWPL claims are broader, on the other hand. Employees only must show they reasonably believed a violation of federal or state law had occurred or was occurring.¹⁶

Each claim has its pros and cons. The coexistence of Bowman claims and statutory reprisal protections like the VWPL means wrongfully discharged employees have multiple options for relief in Virginia.

If you have been wrongfully discharged while working in Virginia, call The Employment Law Group to discuss your options.

Footnotes

1. Bowman v. State Bank of Keysville, 229 Va. 534, 540 (1985).

2. Id at 540.

3. Va. Code § 13.1–32, now Va. Code § 13.1–662

4. Bowman v. State Bank of Keysville, 229 Va. 534, 540 (1985).

5. Rowan v. Tractor Supply Co., 263 Va. 209, 213-14 (2002).

6. Scates v. Shenandoah Mem’l Hosp., No. 5:15-CV-00032, 2015 WL 6143457, at *9 (W.D. Va. 2015) (citing Anderson v. ITT Indus. Corp., 92 F. Supp. 2d 516, 522 (E.D. Va. 2000)).

7. Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 98-99 (1996).

8. VanBuren v. Grubb, 284 Va. 584, 592 (2012).

9. Shaw v. Titan Corp., 255 Va. 535, 545 (1998).

10. Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 685 (1967)).

11. Va. Code § 40.1-27.3.

12. Id. at (A).

13. See Colquitt v. Bon Secour Mercy Health, No. 4:21CV53, 2022 WL 479093 (E.D. Va. Feb. 16, 2022), aff’d sub nom. Colquitt v. Bon Secours Mercy Health, No. 22-1288, 2022 WL 17848949 (4th Cir. Dec. 22, 2022); Chenault v. RBI Corp., 108 Va. Cir. 529 (2021).

14. Id.

15. Va. Code § 40.1-27.3(C).

16. Wood v. Bristol Virginia Util. Auth., 661 F. Supp. 3d 538, 550 (W.D. Va. 2023) (quoting Peters v. Jenney, 327 F.3d 307, 320 (4th Cir. 2003)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.