In many ways -- and under many laws -- Virginia remains part of the Old South. The Commonwealth continues to adhere strongly to employment at will, remains cautious about expanding common-law causes of action, and generally prefers clearly stated statutory rights over judicial innovation. Historically, Virginia employers operated in a legal environment that was comparatively predictable and, in many respects, very employer-friendly.

Then came July 1, 2020.

On that date, a trove of new laws fundamentally altered the relationship between Virginia employers and employees. The General Assembly expanded the Virginia Human Rights Act, created stronger wage-payment remedies, tightened the use of noncompete agreements, addressed worker misclassification, and enacted a broad private-sector whistleblower law. What began as a single legislative wave has become a sustained transformation of Virginia employment law. Virginia employees now possess significantly stronger tools, including a private right of action to pursue wage claims, while employers face increased damages, attorneys’ fees, and other potential liabilities. At the same time, the General Assembly has progressively narrowed the circumstances in which employers may use noncompete agreements.

Many would argue, though, that the most consequential Virginia employment law change since July 2020 is also one of the most frequently pleaded: Virginia Code § 40.1-27.3, commonly called the Virginia Whistleblower Protection Act (“WPA”). As a management-side employment lawyer, these days I rarely see a significant employment dispute in which the employee does not allege retaliation for reporting to the employer something unlawful. Whistleblower claims have become ubiquitous in Virginia. The WPA can have significant consequences for employers. The available statutory remedies include injunctive relief, reinstatement, compensation for lost wages, benefits and other remuneration, interest, and reasonable attorneys’ fees and costs. Those remedies make even a relatively modest employment dispute expensive to defend.

What the Virginia Whistleblower Law Protects

The WPA prohibits an employer from discharging, disciplining, threatening, discriminating against, penalizing, or otherwise retaliating against an employee with respect to compensation, terms, conditions, location, or privileges of employment because the employee engaged in specified protected conduct. The scope of protected conduct under the WPA is far broader than simply contacting a government agency. It includes a good-faith report of a violation of federal or state law or regulation to the employees’ supervisor, a governmental body, or a law-enforcement official. It also includes participating in a government investigation at the government’s request; refusing to engage in a criminal act that would expose the employee to criminal liability; refusing an employer’s direction to perform an unlawful act after telling the employer why the employee is refusing; and providing information or testimony in a governmental investigation of the employer.

However, the WPA does not protect every workplace complaint. Complaints about things like unfairness, favoritism, personality conflicts, poor management, or violations of an internal company policy are not necessarily protected unless they are somehow tied to an asserted violation of federal or state law or regulation. Nor does the WPA authorize employees to disclose privileged or legally protected information, violate confidentiality rights, or make statements they know are false or make with reckless disregard for the truth.

The Basic Elements of a Claim

Virginia courts generally describe a whistleblower claim as requiring three elements: protected activity, an adverse or retaliatory employment action, and a causal connection between the two. The apparent simplicity of that test is deceptive: Each element can generate substantial factual disputes.

First, the employee must have engaged in conduct that is protected by the WPA. The reporting channel matters. For example, the Fourth Circuit concluded that an employee’s disclosure to an outside third party did not fall within the WPA’s definition of protected activity because the recipient of the disclosure was not a supervisor, governmental official, or law-enforcement official. The Court also emphasized that the disclosure violated the employer’s confidentiality policy. Not all courts have not read the WPA’s “to a supervisor” requirement so narrowly. In one case in which the employee reported suspected fraud to the chairman of the board and the report later reached the employee’s supervisors, the trial court held that this was sufficient at the pleading or preliminary stage to satisfy the WPA, reasoning that the statute did not require a rigid, direct report to the individual with immediate authority to hire or fire the employee.

Second, the WPA requires that a retaliatory action be taken by the employer in response to the employee’s protected disclosure. Termination is the most obvious example of a retaliatory action, but the WPA’s language reaches much further to include discipline, threats, pay reductions, undesirable transfers, loss of duties, schedule changes, and other actions affecting the terms or privileges of employment may qualify. The Supreme Court of Virginia underscored that breadth of a retaliatory action covered by the WPA, concluding that removal of a physician from the work schedule was enough to constitute a prohibited retaliatory action adversely affecting the terms of employment, even though the physician had not yet received formal notice that her relationship with the employer had been terminated.

Third, the employee must prove causation. Both federal and state courts applying the WPA have treated the General Assembly’s use of the word “because” as requiring but-for causation. In other words, the employee must show that the protected disclosure was the reason the employer took the challenged action, not merely one of multiple events that happened before the protected disclosure. Moore adopted that standard, as have federal decisions applying the statute.

Causation is almost always proved circumstantially. Suspicious or close timing may help, but timing alone is not always enough. One Virginia court found a triable issue of fact where the employer’s performance concerns arose after the employee’s protected disclosure and the employer had already given the employee a positive performance review. By contrast, factors such as an intervening policy violation by the employee and attenuated temporal proximity can defeat an inference of employer retaliation.

The One-Year Filing Deadline

Virginia’s whistleblower statute contains a short limitations period, meaning that the employee must file a lawsuit within one year of the employer’s prohibited retaliatory action. Employers and employees should not assume that the limitations clock begins on the employee’s final day of employment. In fact, the Virginia Court of Appeals has held that the clock begins to count-down when the employer notified the employee that his position was being eliminated, not when the termination later became effective. In the physician case mentioned above, the Supreme Court of Virginia concluded that the limitations period began to run as soon as the employer had removed the plaintiff from the work schedule. The takeaway from these cases is that the statute of limitations period commences upon the employer’s alleged retaliatory act, not from the employee’s later discovery of its full effect, permanence, or allegedly retaliatory character.

Red Flags for Virginia Employers

The principal red flags for employers under the WPA are familiar but also easy to overlook in real time: an employee uses words such as fraud, illegal, wage theft, safety violation, discrimination, false billing, or regulatory violation; a supervisor begins documenting performance concerns only after the complaint; the stated reason for discipline changes over time; a previously satisfactory employee is suddenly removed from meetings, duties, schedules, or incentive opportunities; decision-makers act without confirming who received the employee’s complaint; or the employer moves quickly toward termination without a careful, independent review of the retaliation risks.

The practical lesson is straightforward. Before taking a materially adverse action against an employee who has raised what might amount to a legal or regulatory concern, Virginia employers should stop, consider whether the disclosure is actually protected by the WPA, confirm the legitimate business reason for the proposed adverse employment action, examine the timing of the decision, and determine whether the documentation supporting the proposed adverse employment action existed before the dispute began. In today’s Virginia workplace, whistleblower risk is no longer an occasional side issue. It has become a central part of nearly every significant employment dispute.

If you have questions about Virginia’s Whistleblower Protection Act or need help with a specific employment law issue in Virginia, Maryland, or the District of Columbia, please contact Doug Taylor at (703) 526-5586 or rdougtaylor@beankinney.com or your current Bean Kinney attorney.

This article is for informational purposes only and does not constitute legal advice. If you have questions about how these laws apply to your business, consulting counsel early is strongly recommended.