Wrongful Termination

Were you asked to do something illegal at work, or something you believe to be contrary to public policy in Virginia? If your refusal to take part in illegal activity results in your termination, you may have a claim of wrongful termination against your employer.

Wrongful termination is illegal in Virginia and the District of Columbia, but it is narrowly defined so as to apply in only limited circumstances. A private-sector employee is generally considered to be employed on an “at will” basis and can be discharged by an employer for any reason or for no reason at all, unless the employee’s contract explicitly provides otherwise or the termination itself is a violation of law.

As such, an employee can be fired due to personal differences or favoritism. However, most states have carved out public policy exceptions to the general rule of “at will” employment. Our lawyers help employees find those exceptions in cases of wrongful termination.

Virginia has two primary protections against a wrongful termination that is not the result of unlawful discrimination. The first is the Fraud and Abuse Whistleblower Protection Act. You can learn more about that here.

Outside of this statutory protection, Virginia has three other exceptions to the general concept of “at will” employment. These are commonly called Bowman claims, named after the case which established this cause of action, Bowman v. State Bank of Keedysville, 229 Va. 534 (1985).

The first exception is triggered when an employee is fired for exercising a right that they are entitled to by statute, such as using his or her workers’ compensation benefits.

The second exception is found in situations where the employee is terminated for refusing to commit a crime.

The third exception covers situations in which the employer violated public policy expressed in a state law. To meet the third standard, an employee must demonstrate that he or she is a member of the class of persons entitled to protection under the applicable statute; that is, the law was designed to protect people like the individual asserting his or her rights under the law.

A claim for common law wrongful termination in Virginia is not blocked by filing a similar federal cause of action nor is it limited to situations where no other cause of action is available. These restrictions do apply in the District of Columbia, as discussed below.

Remedies available for a Bowman claim include lost wages and punitive damages. It is an open question as to whether compensatory, or emotional distress, damages are available in these claims. The Virginia Supreme Court has not ruled definitively on the issue.

A plaintiff has two years to file a common law claim for wrongful termination in Virginia but only one year to file claims under the Fraud and Abuse Whistleblower Protection Act. As always, you should move as quickly as you can to protect your rights so that you are not barred by any statute of limitations.

Unlike Virginia, the District of Columbia does not have private sector whistleblower protections. However, District of Columbia courts recognize a narrow, three-faceted public policy exception to the traditional at-will doctrine.

This exception covers an employee who was fired for any of the following: 1) refusing to engage in illegal conduct, 2) exercising a statutory right, or 3) reporting an employer’s illegal conduct. To establish a claim of wrongful discharge, an employee must show that the employer’s action violated a policy officially established in a statute or regulation. Courts in D.C. use a case-by-case analysis of the employee’s claim of a public policy exception.

In D.C., the civil action for wrongful discharge can be pursued only when no other remedy for the same underlying allegation is available. Therefore, the claim is available only as a last resort where no other claim is provided for by federal or D.C. law. Plaintiffs have three years to file a claim for wrongful termination in the District of Columbia.

Our lawyers can help you determine if you have been wrongfully terminated in violation of Virginia or D.C. law. Please contact us for a consultation.