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Punitives in worker safety case at issue

An employee who says he was fired within an hour after his employer discovered that he reported the company for safety violations will be trying to hang on to a punitive damages award when the Supreme Court of Virginia hears his case later this year.

Aaron Rechichar sued his former employer, Property Damage Specialists Inc., under Va. Code § 40.1-51.2:2(B), a whistleblower statute that protects employees who report workplace safety violations to the Virginia Department of Labor and Industry. PDS is a construction company specializing in restoring property damaged by smoke, water or fire.

Rechichar began working for the company in 2012, just a few months before he contacted the state labor department, according to the appellate brief filed by New Market lawyer Michael J. Melkersen, who represents PDS.

The employer was cited for six serious safety violations as a result of his complaint to the agency, Rechichar said in his appellate pleadings. PDS said its written notice to Rechichar stated he was terminated because he allegedly failed to report his safety concerns to PDS.

After his discharge, Rechichar sued in Shenandoah County Circuit Court. The trial judge barred an award of attorney’s fees as not being specifically authorized by the statute, but let the punitive damages claim go to the jury. The jury awarded him $10,010 in lost wages and $25,850 in punitive damages.

In December, the Supreme Court granted the employer’s appeal of the punitive damage award.

Punitive damages are not allowed under Code § 40.1-51.2:1, the statute under which Rechichar sued, the employer’s brief contends. Even if a jury could be allowed to consider such a penalty, the company did not receive sufficient notice that it faced such a claim. The plaintiff never asserted a common-law retaliatory discharge claim, the employer said

The Supreme Court of Virginia carved out a public-policy exception to the employment-at-will doctrine for certain wrongful discharges, but Rechichar did not sue under the 1985 case, Bowman v. State Bank of Keysville, the employer argued.

A statutory mandate for “appropriate relief” in the workplace safety law shows the legislature’s intent to grant trial courts the discretion to award punitive damages, according to Rechichar’s brief, filed by Charlottesville lawyer John B. Simpson.

In an amicus brief in support of Rechichar, the Virginia Trial Lawyers Association said the trial court recognized that the employer’s conduct supported punitive damages, and Virginia law allows punitive damages for common law intentional torts, including wrongful discharge.

The relatively modest compensatory damage award in this case highlights the need for a punitive damages award in order to deter such conduct by an employer, the VTLA said in its brief.