Virginia has two main laws protecting whistleblowers. The oldest, the Fraud and Abuse Whistle Blower Protection Act (Act), Virginia Code §§ 2.2-3009 et seq., previously applied only to federal and state agencies before being extended in 2016 to local government employees.
The Act has no application in the private sector.
In 2020, Virginia took a number of steps to increase employee protections, including the adoption of new private sector whistleblower protections. Despite differences in the laws applicable to public and private employers in Virginia, employers in both sectors can chart similar courses to avoid whistleblower lawsuits.
Virginia's Private-Sector Whistleblower Protections in Virginia Code § 40.1-27.3
This law, which is applicable to private sector employers defined whistleblower activities under § 40.1-27.3 to include:
- Reporting, in good faith, suspected violations of federal or state laws or regulations to supervisors, governmental bodies, or law enforcement officials;
- Participating in investigations, hearings, or inquiries upon request of governmental bodies or law enforcement officials;
- Refusing to engage in criminal acts that would subject the employee to criminal liability;
- Refusing to follow an employer's order that violates any federal or state law, provided the employee informs the employer of the reason for the refusal; and
- Providing information to or testifying before governmental bodies or law enforcement officials regarding alleged violations by the employer of federal or state laws or regulations.
Further, an employer may not discharge, discipline, threaten, or discriminate against an employee, or take other retaliatory action regarding an employee's compensation, terms, conditions, location, or privileges of employment, for engaging in protected whistle blower activity. An employee who believes they have been subjected to a violation can file a civil suit within one year of the retaliatory act and seek lost wages, injunctive relief, and attorney's fees, among other forms of relief, including broad "other remuneration."
Virginia Code § 40.1-27.3 does not, however, extend whistleblower protections to:
- The disclosure of data protected by law or legal privilege;
- Knowingly making statements or disclosures that are false or that are in reckless disregard of the truth; or
- Disclosures that violate federal or state law or diminish or impair common law protections for confidential communications.
The protections of § 40.1-27.3 do not apply to state and local government employees.
Private employers in Virginia must be mindful of this law because it operates on a different statute of limitations from most employment-related litigation. For example, under federal discrimination laws, most employees have 300 days to file a Charge of Discrimination with the Equal Employment Opportunity Commission, a pre-curser to proceeding to litigation. Under § 40.1-27.3, however, the employee may not need to go to the EEOC first, but may be able to proceed directly to litigation and under a longer, one-year statute of limitations. It will be important for private employers to be mindful of the overlap between this whistleblower protection law and other related state and federal laws governing the workplace.
Virginia's Public-Sector Whistleblower Protections
Virginia Code § 2.2-3011(A), applicable to public employers and employees, provides that "[n]o employer may discharge, threaten, or otherwise discriminate or retaliate against a whistle blower whether acting on his own or through a person acting on his behalf or under his direction." Despite this broad statement, the Act has a more limited application compared to its private employer counterpart.
A whistleblower entitled to protection under the Act includes any person employed full-time by a governmental agency who makes a good faith report of wrongdoing or abuse. Wrongdoing is defined as "a violation, which is not of a merely technical or minimal nature, of a federal or state law or regulation, local ordinance, or a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or employee." Abuse means "conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government sources." Under the Act, the "employer," in the traditional sense (i.e., the employing entity), is not subject to liability. Instead, the party subject to suit is the whistleblower's supervisor (or the supervisor's superior) or another agent of the government employer.
To recover under the Act, the Court must find a willful and knowing violation. If it does, the Court may award injunctive relief, a civil penalty of up to $2,500, reinstatement to the same or an equivalent position, back pay, reinstatement of fringe benefits and seniority rights, or any combination of these remedies. The whistle blower also may recover reasonable attorney's fees and costs. Claims under the Act are subject to a three-year statute of limitations.
How Employers Can Avoid Whistle Blower Lawsuits
These two statutes differ in key areas, such as:
- What type of whistleblower activity is protected? The private sector statute applies to a broader set of protected activities than the public sector Act.
- Who is protected? The Act applies only to full-time public sector employees, while § 40.1-27.3 applies to full-time and part-time private-sector employees.
- Who can be held liable? In the private sector, the actual employer can be held liable, but in the public sector, supervisors are the potentially liable parties.
- What remedies are available? The private sector remedies are more extensive, given the availability of "other remuneration."
Despite these differences, there are some common proactive steps that all employers can take to minimize exposure to whistleblower claims.
1. Develop and Implement Clear Policies
Employers should establish policies that encourage employees to report concerns internally. These policies should outline the procedures for reporting, assure protection against retaliation, and specify the steps the employer will take to investigate complaints. These policies should be disseminated to all employees, and employers should regularly review and update these policies to ensure they conform to current laws and best practices. By having such policies in place, employers hopefully will learn of and address any wrongdoing, abuse or violation. Further, these types of policies can help protect employers from liability in those situations where a former employee who did not take advantage of such a complaint procedure files a claim. These policies can turn the tables and put the former employee in a position to explain why they did not follow the available procedure.
2. Management Training
Employers should conduct regular training sessions for managers and employees to educate them about applicable whistleblower protections. Training should emphasize the importance of responding appropriately to complaints and the consequences of retaliatory actions. Well-informed management is less likely to engage in or overlook retaliatory behavior. Further, while training should include instruction on what constitutes protected activity under the applicable law, managers should be cautioned to broadly view complaints as whistleblower activity so as to not miss opportunities to solve legitimate workplace problems and manage potential exposure.
3. Conduct Prompt and Impartial Investigations
When a complaint is received, Employers must initiate a timely and unbiased investigation. Employers should assign investigators, either in-house or outside legal counsel depending on the nature (complexity, seriousness, person(s) involved) of the claims, who are neutral and trained in handling such matters. During the investigation, employers will want to maintain the confidentiality of the complainant, the respondent, and the circumstances as best as possible; however, the desire for confidentiality cannot undermine the effectiveness of the investigation.
4. Document All Actions and Decisions
Employers should maintain thorough documentation of all employee complaints, investigations, and outcomes. Accurate records can provide evidence that the employer acted appropriately and did not engage in prohibited conduct.
5. Avoid Adverse Actions During Investigations
Employers should be very cautious about taking adverse employment actions against employees who have filed complaints or are participating in investigations unless the circumstances are clear and well-documented. Even where adverse actions are legitimate, an employee can state a whistleblower claim where there is a close temporal proximity between the complaint/investigation and the adverse action.
6. Consult Legal Counsel
Engage legal counsel to review company policies, training programs, and specific cases involving possible whistleblower complaints. Legal counsel can provide guidance on compliance with applicable laws and help navigate complex situations to avoid potential litigation.
In Summary (and Word of Caution for Public Sector Employers)
Virginia's two whistleblower laws have many differences, but employers can use tried and true methods for addressing workplace concerns to limit their exposure. Establishing employee expectations through clear policies, engaging in robust and effective management training, providing avenues for employee reports and complaints, promptly conducting thorough and unbiased investigations, and appropriately documenting personnel actions are vital to managing potential whistleblower liability.
Lastly, the generally favorable treatment public sector employers have received under the Act is under legislative assault. In 2025, the General Assembly adopted a code amendment that would have extended § 40.1-27.3 into the public sector. The current Governor vetoed that legislation, but with a gubernatorial election upcoming this November, the expansion of § 40.1-27.3 is an issue we will be monitoring.
