Virginia, like most states, is an “at-will” employment jurisdiction. What this means is that employers are free to hire and terminate employees for any reason or no reason. On the flip side, at-will employment also allows employees to come and go between employers as they wish for any reason or no reason. However, at-will employment is merely the general rule; there are several notable exceptions to it in Virginia law. And even employees who are not considered at-will can still be wrongfully terminated. If you believe your termination falls into one of the exceptions explained herein, a Richmond employment lawyer can help you pursue legal remedies.
The following types of termination generally are considered “wrongful” under Virginia law:
Termination Due to Retaliation
Retaliation occurs when an employer takes adverse action against an employee due to the employee’s engagement or participation in a legally protected activity. It can include termination, demotion, denial of promotion, reassignment, or pay cuts, among other adverse actions. Employers commonly engage in retaliation where it perceives an employee’s conduct to threaten their operations, revenue, or reputation in some way.
Certain types of retaliation are prohibited under Virginia Code § 40.1-27.3. This statute applies in situations where the employee takes one or more of the following actions:
- Makes a good-faith report of a violation of a federal or state law or regulation to a government body or law enforcement official
- Refuses to engage in criminal activity that would subject the employee to criminal liability
- Refuses an employer’s order to engage in activity that would violate federal or state laws or regulations
- Is requested by a government body to participate in an investigation, hearing, or inquiry
- Provides information to or testifies before a government body in an investigation into alleged violations of federal or state laws or regulations
There are several caveats here, however. Section 40.1-27.3 does not authorize an employee to make disclosures of information protected by law or legal privilege (e.g., trade secrets). Furthermore, reports must be made in good faith; they may not be made with malicious intent to cause harm to the employer, for example.
Termination for Whistleblowing
Whistleblowing occurs when an employee has knowledge of fraud, waste, or abuse being committed by his or her employer and discloses that information to the appropriate government body. It is most common where government employees reveal wrongdoing occurring in their agencies or where employees of government contractors reveal wrongdoing being perpetrated against the government. There are a variety of state and federal laws that protect whistleblowers, including the False Claims Act, the Sarbanes-Oxley Act, and the Dodd-Frank Act.
Virginia’s whistleblower protection law is the Fraud and Abuse Whistle Blower Protection Act. It applies to both public sector and private sector employees and prohibits discriminatory or retaliatory action where a whistleblower discloses information about suspected wrongdoing to an appropriate authority. Such activities could include misuse, waste, or loss of funds; behavior that violates any state, local, or agency standard; or behavior that violates federal, state, or local law. Under Virginia law, any whistleblower (public sector or private sector) whose information results in a recovery of at least $5,000 may be entitled to a portion of the proceeds recovered.
Termination in Violation of Public Policy
While many of Virginia’s wrongful termination laws are statutory, like those cited above, there are several others based in case law that are commonly referred to as “public policy” prohibitions (although there is significant overlap between both types of law).
Employee a Member of a Statutorily Protected Class
One of the most widely known exceptions to at-will employment is discriminatory termination. This occurs where the terminated employee was a member of a statutorily protected class, such as those found in the Virginia Human Rights Act. That act prohibits discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, sexual orientation, gender identity, disability, or military status. Please note, however, that proving such cases can be difficult; if you believe you were terminated due to your membership in a protected class, please contact a Richmond employment lawyer.
Employee Exercise of a Statutory Right
The second public policy exception to at-will employment is termination based on an employee’s exercise of a statutory right. This exception commonly arises in the context of employees who are terminated for filing claims for workers’ compensation benefits or reporting workplace safety violations, among other activities. The plaintiff in such cases must show that the employee’s termination was a violation of a policy embodied in a particular statute.
Employee Refusal to Participate in Illegal Activity
The third public policy exception to at-will employment is termination based on an employee’s refusal to engage or participate in criminal acts. This exception encompasses a wide variety of behaviors that are prohibited under Virginia’s criminal laws. This exception could apply, for example, where an employee is fired for refusing to commit perjury during an investigation or hearing concerning his or her employer.
Termination Due to Breach of Employment Contract
While employees who have written employment contracts generally are not considered “at-will” employees, they may nonetheless be wrongfully terminated. A wrongful termination in this context occurs when an employer terminates an employee in violation of a term in the employment contract. This could include, for example:
- Terminating the employee for a reason not specified in the contract
- Demanding that the employee do work outside the scope of the contract
- Terminating the employee before the expiration of the contract
- Failure by the employer to perform a contractual obligation in a timely manner
- Denying the employee a benefit to which he or she was contractually entitled
Contact a Richmond Employment Lawyer for Help After a Wrongful Termination
Wrongful termination can deal a significant blow to anyone’s career. If you believe you were wrongfully terminated — even if you were an at-will employee — you may be able to pursue legal remedies if your case falls within one of the exceptions above. For more information about pursuing wrongful termination claims, please contact a Richmond employment lawyer at Pierce / McCoy by calling 757-304-6655 or using our online contact form.