Written by: Kyle Mosey

Virginia Governor Ralph Northam recently signed new laws that provide employees with greater rights in many aspects of their employment. Of these new laws, House Bill 798 is an extensive whistleblower law that grants employees a great deal of protection from their employer’s retaliation. This law, which becomes effective July 1, 2020, is the first of its kind in Virginia. Once enacted, House Bill 798 will offer a broad scope of protection for employees who choose to blow the whistle on their employer’s unlawful conduct.

These protected actions include:

  1. Reporting in good faith a violation of any federal or state law or regulation to a supervisor or any governmental body or law enforcement official;
  2. Being requested by a governmental body or law enforcement official to participate in an investigation, hearing, or inquiry;
  3. Refusing to engage in a criminal act that would subject the employee to criminal liability;
  4. Refusing an employer’s order to perform an action that violates any federal or state law or regulation when the employee informs the employer that the order is being refused for that reason; and
  5. Providing information to or testifying before any governmental body or law enforcement official conducting an investigation, hearing, or inquiry into any alleged violation by the employer of federal or state law or regulation.

While this new law provides broad  protection for employees, the law also details non-protected actions as well. House Bill 798 delineates that it does not:

  1. Authorize an employee to disclose data otherwise protected by law or any legal privilege;
  2. Permit an employee to make statements or disclosures knowing that they are false or that they are in reckless disregard of the truth; and
  3. Permit disclosures that would violate federal or state law or diminish or impair the rights of any person to the continued protection of confidentiality of communications provided by common law.

Virginia’s Whistleblower Protection Prior to House Bill 798

Before the enactment of House Bill 798, Virginia employees relied on court interpretations of case law for whistleblower protection. Often this left wrongfully discharged whistleblowers with no real protection. Therefore, many employees turned to common law protections such as wrongful discharge torts but found little solace due to the limitation of these tort protections for terminations that violated a public policy found in Virginia statutes rather than federal law. While House Bill 798 is by no means the strongest state protection for whistleblowers, it grants Virginia whistleblowers statutory protection that was previously unavailable to them.

Impact for Employees

Under House Bill 798, when an employer retaliates against a whistleblowing employee, the employee may bring a civil action in a court of competent jurisdiction within one year of the employer’s prohibited retaliatory action. There is no requirement for the employee to exhaust administrative remedies before bringing the lawsuit against the employer. The goal of House Bill 798 is to encourage employees with information on their employer’s unlawful conduct to feel protected enough to come forward. When the whistleblower prevails in the civil action, they are entitled to the following forms of relief:

  1. An injunction to restrain continued violation of House Bill 798;
  2. Reinstatementto the same position held before the retaliatory action or to an equivalent position; and
  3. Compensation for lost wages, benefits, and other remuneration, together with interest thereon, as well as reasonable attorney’s fees and costs.

Employers are likely to challenge this new law as it is an extensive change to Virginia’s employee protection legislation. While this article provides a brief overview of House Bill 798, it by no means offers total insight on the new complex Virginia law.

Individuals should immediately obtain legal advice when faced with retaliation from employers. Our team of accomplished whistleblower attorneys can help you prevail in a retaliation lawsuit. After a confidential case review, we can help you fight for your rights in the event of retaliation from your employer.

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