What Counts as “Wrongful” Termination?

Most employees in Virginia are considered “at will,” meaning that they are not covered by an employment contract and can be terminated at any time. As such, many employees may be surprised to learn that even under this at-will scheme, they may have legal recourse after being terminated — not just for unlawful discrimination. On the flip side, many employers assume that Virginia’s at-will employment scheme gives them unlimited discretion to terminate employees. The truth is somewhere in between. While Virginia law does give employers broad latitude to terminate employees, that authority is not absolute, and crossing legal boundaries may give rise to a wrongful termination claim. Here, our Richmond employment lawyers explain what counts as “wrongful” termination. 

The Common Law Exception (“Bowman” Claims)

Virginia law recognizes an exception to the at-will employment doctrine if the termination at issue violates a public policy. Because this exception derives from Bowman v. State Bank of Keysville, 229 Va. 534 (1985), wrongful termination claims based thereon are often referred to as Bowman claims. In Bowman, the Virginia Supreme Court held that employers may be liable for wrongful termination if the termination violates a public policy as expressed in a Virginia statute. Over the years, Virginia courts have clarified that this exception applies in three categories: 

Termination for Exercising a Statutory Right

The statutory right exception is straightforward — if employees can be terminated for exercising rights granted by statute, then those rights become meaningless. As such, employers may find themselves on the wrong end of a wrongful termination suit for discharging an employee for exercising such a right. A common example of a statutory right that falls into this category is the right of employees to discuss wages under Virginia Code § 40.1-28.7:9. However, these claims can be difficult to prove, as they require plaintiffs to point to a specific statute that clearly establishes the right in question. 

Termination Violating a Public Policy 

Even if an employee cannot demonstrate that their termination was contrary to a specific statutory right, they may nonetheless be able to pursue a wrongful termination claim under the “violation of a public policy” exception. The rationale for this exception is similar to that above — public policy mandates lose their bite if employees can be terminated for complying with them. Examples of terminations that could fall into this category include terminations for filing a workers’ compensation claim, serving on a jury, or complying with a subpoena. For more information about the public policy exception, please contact a Richmond employment lawyer.  

Termination for Refusing to Commit a Criminal Act 

Consider this scenario: You discover that the CEO of your company may have been engaged in widespread fraud and embezzlement. When you disclose this to your manager, he or she directs you to falsify records to avoid exposing the company to liability. If you refuse to do so and are terminated, your termination likely would be considered wrongful, as employees have the right to refuse to engage in criminal activity. 

Federal and Commonwealth Statutory Exceptions 

Bowman is not the only recourse for employees who feel that they have been wrongfully terminated. A great many wrongful termination claims are based on allegations that a termination violated federal statutory law, Virginia statutory law, or both. Below are some common examples of statute-based wrongful termination claims. For more information about any of the legal claims discussed herein, please seek the counsel of a Richmond employment lawyer. 

Discrimination 

Both federal law (e.g., the Civil Rights Act) and Virginia law (e.g., Virginia Human Rights Act) make it unlawful to terminate employees on the basis of a protected characteristic, including (depending on the statute in question) age, race, sex, sexual orientation, gender identity, and marital status, among others. Many wrongful termination claims alleging discrimination proceed under the McDonnell Douglas framework, which requires the employee to make a prima facie (i.e., “at first sight”) case of discrimination. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the termination, which the employee may then rebut as merely pretextual. 

Accommodations 

The Americans with Disabilities Act (ADA) prohibits employers from firing (or otherwise taking adverse employment action against) an otherwise qualified individual solely due to their disability. Further, the ADA requires covered employers to provide “reasonable accommodations” to disabled employees to enable the qualified individual to perform the essential functions of the job at issue unless the employer can prove that doing so would impose an “undue” hardship. Many wrongful termination claims arise from disagreements between employers and employees over what constitutes a reasonable accommodation and undue hardship. 

Retaliation 

As discussed above, the basis of Bowman’s claims is that statutory rights are meaningless if employees can be terminated or otherwise disciplined for asserting them. The same logic applies to retaliation claims. Virtually all major employment statutes include provisions prohibiting employers from terminating employees for engaging in a protected activity. Common examples of protected activities that often give rise to retaliation lawsuits include: 

• Filing discrimination complaints
• Engaging in protected whistleblowing 
• Reporting workplace health and safety violations
• Participating in an investigation or lawsuit 

While retaliation is unlawful, it can be difficult to prove, as plaintiffs must show a causal connection between the protected activity and the adverse action, and there is rarely a smoking gun. Instead, courts often look to the surrounding circumstances — particularly the temporal proximity of the protected activity and adverse action — to infer that retaliation played a role in the employee’s termination. 

Avoid Wrongful Termination Claims With Help From a Richmond Employment Lawyer

The best way to avoid liability for wrongful termination is to refrain from engaging in it, and the best way to do that is to work with an experienced attorney to draft and implement employment practices that comply with the law and respect employee rights. To get started, please contact a Richmond employment lawyer at Pierce / Jewett by calling 804-502-2320 or using our online contact form.