Zuckerman Law represents Virginia workers in whistleblower retaliation, discrimination, and other employment-related disputes and negotiations. Call us today to schedule a consultation! Our work includes (1) litigating Virginia discrimination and whistleblower retaliation claims; (2) representing employees of government contractors and grantees in whistleblower retaliation claims under the False Claims Act and Sections 827 and 828 of the NDAA; (3) negotiating executive severance, separation, and employment agreements; (4) combatting workplace discrimination against lesbian, gay, bisexual, and transgender workers; (5) representing cybersecurity whistleblowers; (6) litigating sexual harassment, glass ceiling discrimination, age discrimination, pregnancy discrimination, and Equal Pay Act discrimination claims; (7) assisting whistleblowers in investigating and disclosing fraud to the IRS whistleblower program, SEC whistleblower program, and (8) CFTC whistleblower program; and litigating non-compete disputes.
Who is protected under the Virginia Whistleblower Protection Law?
The statute prohibits “an employer” from retaliating against “an employee” for engaging in specified forms of protected conduct, but it does not define those terms. Courts will likely apply the definition of “employee” from title 40.1 of the Virginia Code, i.e., “any person who, in consideration of wages, salaries or commissions, may be permitted, required or directed by any employer to engage in any employment directly or indirectly.” This definition excludes independent contractors, but a misclassified independent contractor could arguably bring a claim.
What disclosures are protected under the Virginia Whistleblower Protection Law?
Protected conduct includes:
Reporting in good faith a violation of any federal or state law or regulation to a supervisor or to any governmental body or law enforcement official;
Being requested by a governmental body or law enforcement official to participate in an investigation, hearing, or inquiry;
Refusing to engage in a criminal act that would subject the employee to criminal liability;
Refusing an employer’s order to perform an action that violates any federal or state law or regulation when the employee informs the employer that the order is being refused for that reason; or
Providing information to or testifying 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 acts of retaliation are prohibited under the Virginia Whistleblower Protection Law?
The Virginia Whistleblower Protection Law proscribes a broad range of retaliatory acts, including discharging, disciplining, threatening, discriminating against, or penalizing an employee or taking other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges of employment because of the employee’s protected conduct. A mere threat to retaliate against a whistleblower (e.g., threatening to terminate the employee for reporting unlawful conduct or threatening to sue an employee for engaging in additional protected conduct) is actionable.
What damages or relief can a prevailing whistleblower secure under the Virginia Whistleblower Protection Law?
A claim under the Virginia Whistleblower Protection Law can be brought within one year of the retaliatory adverse action. As Virginia civil procedure disfavors summary judgment, whistleblowers are more likely to get to trial in state court than in federal court. Employers will have difficulty obtaining summary judgment in Virginia circuit court because a motion for summary judgment cannot rely upon discovery depositions. See Va. Code § 8.01-420.
Although the scope of protected conduct and prohibited retaliation are broad, the remedies could be stronger. A prevailing plaintiff can secure the following relief:
An injunction to restrain a continued violation;
Reinstatement to the same or an equivalent position held before the employer took the retaliatory action; and/or
Compensation for lost wages, benefits, and other remuneration, together with interest, as well as reasonable attorneys’ fees and costs.
The statute does not expressly authorize compensatory or punitive damages.
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