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Legal Insider: Virginia Enacts Whistleblower Law

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

The Commonwealth of Virginia enacted a number of new employment laws this year, completely transforming employee rights as never before.

One of these new employment laws in Virginia involves providing Whistleblower rights for employees. In the past, employees had to rely on a very weak system of whistleblower protection that was developed through the courts and case law. Essentially, there was little protection for those terminated for blowing the whistle on an employer’s illegal conduct. That has now changed and this article discusses the new Virginia Whistleblower legislation.

Virginia’s New Whistleblower Law

Virginia’s new whistleblower law, enacted in House Bill 798, was sponsored by State Delegate Karrie Delaney, was signed into law on April 11, 2020, by Governor Ralph Northam and became effective on July 1, 2020.

The new law prohibits employers from discharging, disciplining, threatening, discriminating against, or penalizing an employee or from taking other retaliatory action with respect to the employee’s compensation, terms, conditions, location or privileges of employment.

How an Employee May Be Protected Under the Whistleblower Protection Law

An employee may be protected by Virginia’s new Whistleblower Protection Law if they:

(1) Report in good faith (or cause another employee to report in good faith) a violation of state law, federal law, or regulation to a supervisor, law enforcement or to any governmental body (e.g., Fairfax/Arlington County, City of Alexandria, federal government authorities).

(2) Are asked by law enforcement or a governmental body to participate in an investigation, hearing or inquiry.

(3) Refuse to commit a criminal act for the employer that would expose the employee to potential criminal liability.

(4) Refuse an employer’s order to perform an act that would violate any federal or state law or regulation (and explain to their employer that their refusal is based on potentially violating the law).

(5) Testify before law enforcement or a governmental body if it is connected to an investigation of an employer’s unlawful conduct.

Employee Remedies

If an employee is subject to whistleblower retaliation, then she/he may file a lawsuit within a year of the retaliation. Courts in Virginia may issue an injunction against the employer’s retaliation, reinstate a wrongfully terminated employee, provide appropriate backpay, attorneys fees and compensation and costs.

The law is new and more complex than provided in this article so it is important to obtain legal advice if a suspected case of retaliation develops.

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