Virginia’s Whistleblower Protection Law (“VWPL”) offers strong protections for Virginia workers who report unlawful practices or refuse an employer’s order to engage in unlawful practices. The law protects a wider range of conduct than that protected under Virginia’s Bowman claim jurisprudence. It covers both internal and external whistleblower activities. It allows courts to award aggrieved employees injunctive relief and reinstatement, compensation for lost wages, benefits, and other remuneration, as well as interest, reasonable attorneys’ fees, and costs. In short, the VWPL is a powerful law for protecting the rights of Virginia employees who stand up and “blow the whistle” on unlawful practices by their employers.
Types of Retaliation Prohibited
The VWPL protects employees who engage in protected whistleblower activities from retaliation in most aspects of the employment relationship. Specifically, the law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee, or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location, or privileges of employment, because the employee engages in a protected activity. VA Code § 40.1-27.3(A).
Protected Activities Under the VWPL
The VWPL includes a list of employee whistleblower activities that it protects from employer retaliation. These “protected activities” are:
- The employee, or a person acting on behalf of the employee, in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
- The employee is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;
- The employee refuses to engage in a criminal act that would subject the employee to criminal liability;
- The employee 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
- The employee 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 a federal or state law or regulation.
VA Code § 40.1-27.3(A)(1)-(5) (emphasis added). The law prohibits employers from retaliating against employees for engaging in any of these activities. With respect to activity (1), it is important to note that, to be a protected activity, the employee’s or agent’s report of a violation of a law or regulation must be made in “good faith.” This good faith requirement means that the employee is likely protected from retaliation as long as she or he has a reasonable basis for believing that a law or regulation is being violated when they make the report. In other words, while the law may not require employees to be right about a suspected violation of a law or regulation, to protect the employee from retaliation, the law does require the employee to have a reasonable basis for believing the conduct they report is in violation of a law or regulation. For this reason, as part of their report, employees reporting suspected unlawful activity may want to identify both the conduct at issue and the particular laws or regulations that they believe are being violated.
It is also important to note that making such a report internally, to a supervisor, is a protected activity under the VWPL. The law does not define “supervisor,” however, so employees may want to make their internal reports to multiple officials up the chain of command, including officials with clear hire/fire and policy-creation authority, to ensure protection under the law.
With respect to activity (4), it is important to note that both conditions must be met for the employee to engage in a protected activity. An employee refusing an employer’s order to perform an action in violation of a law or regulation (other than an act exposing the employee to criminal liability) must also inform the employer that the order is being refused for that reason. Simply refusing an employer’s order to do an action in violation of a law or regulation, without explaining that the reason for the refusal is the unlawful nature of the act, may not be enough to give rise to whistleblower protection under the VWPL. Of course, under activity (3), if the employee refuses an employer’s order to do a criminal act, the employee is protected from retaliation regardless of whether she explains the basis for her refusal. See VA Code § 40.1-27.3(A)(3).
Activities Not Authorized
The VWPL also identifies certain activities that it does not authorize employees to engage in. The VWPL does not authorize employees to:
- Disclose 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 or permit 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 VWPL allows employees who suffer retaliation for protected whistleblower activities to file suit in court. As a remedy to the employee, the court in these cases has the power to award:
- An injunction to restrain the employer from continued violation of the VWPL;
- 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, together with interest on those amounts, as well as reasonable attorney fees and costs.
VA Code § 40.1-27.3(C). In short, Virginia’s Whistleblower Protection Law offers strong protections for Virginia workers who report unlawful practices or refuse an employer’s order to engage in unlawful practices. The law protects a wide range of whistleblower activities and allows courts to award aggrieved employees injunctive relief, reinstatement, as well as lost wages, benefits, and other remuneration, as well as interest, reasonable attorneys’ fees, and costs.
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