New Virginia Law Significantly Broadens Whistleblower Protection
By Stacey Rose Harris
On July 1, 2020, never-before-seen protections for whistleblowers will take (took) effect in Virginia. Prior to the enactment of Virginia’s new “Whistleblower Law,” workers had little recourse if their employer terminated them for reporting illegal or improper activity in their workplace. Previously, their protection had been limited to a few narrow statutory protections and limited common law exceptions to doctrine employment-at-will doctrine.
What Is Protected
Now, the new Whistleblower Law provides broad protections where an employee:
- makes a good faith report of a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official;
- is an employee who 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; and
- 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.
What Is Excluded
The Whistleblower Law, however, does not give employees a blank check. Importantly, the law does not protect an employee:
- who discloses information that is otherwise protected by law or privilege;
- who makes false statements that the employee knows, or should know, are not true; and
- who makes disclosures that violate state or federal law or impair any person’s legally-protected right to confidentiality.
If an employee is discriminated or retaliated against for engaging in protected activities, the employee must bring a claim within a year of the wrongful action. The Whistleblower Law applies only to private-sector employers. Employees of the Commonwealth or its localities who “blow the whistle” already are protected by state law. Remedies available under the new statute include reinstatement, back pay, lost benefits, and, significantly, attorneys’ fees and costs of bringing the action.
All private employers in Virginia should take note of these new worker rights. Make sure that your managers and supervisors are aware of these developments and even better, document your education efforts as to these changes. Moreover, if your supervisors or managers recommend that an employee should be disciplined, ask the necessary questions to make sure that the employee cannot claim that he or she was disciplined for engaging in protected activity. The last thing you want is to run afoul of the rights created by the new Virginia Whistleblower Law.