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Punitives reversed in worker safety case

Deborah Elkins//September 12, 2016

Punitives reversed in worker safety case

Deborah Elkins//September 12, 2016

An employee who says he was fired within an hour after his employer discovered that he reported the company for safety violations cannot collect punitive damages, the Supreme Court of Virginia said on Sept. 8.

Punitive damages are not allowed as “appropriate relief” under Va. Code § 40.1-51.2:1, the whistleblower statute under which the employee sued, the high court said. That statute protects employees who report workplace safety violations to the Virginia Department of Labor and Industry.

Aaron Rechichar sued his former employer, Property Damage Specialists Inc., 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.

The statute provides two avenues for the employee to seek redress after retaliatory action, the Supreme Court said in Property Damage Specialists Inc. v. Rechichar (VLW 016-6-064).

First, subsection (A) authorizes a worker complaint to the Commissioner of Labor and Industry, who can sue in circuit court. Subsection (B) permits the individual employee to file a private enforcement action in circuit court. Both remedies call for a court to award “appropriate relief” to the employee.

Subsection (A), the statutory provision authorizing the commissioner to sue, states the court can order “appropriate relief, including rehiring or reinstatement of the employee,” with back pay and interest. The statute also directs the commissioner to attempt to have a violation of the whistleblower statute abated “without economic loss to the employee.”

“Consistent with the statute’s preceding language, the listed relief concerns remedying economic injury sustained by the employee,” wrote Justice S. Bernard Goodwyn for a unanimous court.

The subsection (B) provision allowing the employee to sue just calls for “appropriate relief,” without itemizing specific remedies.

Subsection (A)’s “listed relief concerns remedying economic injury sustained by the employee,” which indicated that the General Assembly’s intention in subsection (A), and in turn, subsection (B) “was to allow for remedies that rectify an employee’s economic loss,” the Supreme Court said.

The “primary purpose of punitive damages is to punish a wrongdoer rather than to provide relief to the aggrieved party,” Goodwyn wrote, and “appropriate relief” in Code § 40.1-51.2:2 does not include punitive damages.

The court reversed the punitive damages award, and entered final judgment for Rechichar as to the remainder of the circuit court’s award.

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