Virginia Code section 40.1-27.3

In Virginia, as in most states, employment is “at will,” meaning that the employer or the employee can terminate the employment relationship at any time, on very little notice, without any reason at all. A exception to “at will” employment in Virginia has been a termination that violates some public policy that is expressed in the Virginia Code. (For more on this, look here.) For years, Virginia courts have emphasized how narrow that exception has been and have applied it only to employment terminations, and then only very sparingly.

In 2020, Virginia law changed and added a new species of claim for employees who have been discriminated against, punished, or retaliated against for “whistleblowing,” or reporting that their employer has broken a federal or state law or regulation, or for participating in an investigation against their employer, or for testifying against their employer in a hearing or inquiry. This protection also extends to employees who refuse to break the law for the employer or who would make themselves criminally liable if they followed an employer’s orders.

The main part of the statute expresses the protection like this:

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, because the employee:

1. 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;

2. Is requested by a governmental body or law-enforcement official to participate in an investigation, hearing, or inquiry;

3. Refuses to engage in a criminal act that would subject the employee to criminal liability;

4. 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

5. 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.

This protection does not extend so far as to allow an employee to disclose privileged or secret data that is protected by law, or to act in bad faith to disclose information, or to make false statements, or to violate another person’s right to confidentiality.

The remedies available to a person who has been injured by their employer in violation of this section include an injunction to stop the employer from continuing to violate this section, reinstating the employee to the same or equivalent position, compensation for lost wages and benefits, and attorney fees and costs. A lawsuit based on a violation of this section must be brought within a year of the employer’s retaliatory act.

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