Virginia Lawyers Weekly VA Lawyers Weekly
Where the plaintiff alleges his employer discharged him because he complained about COVID-19-related workplace safety issues, he has stated a claim for retaliatory discharge in violation of the public policy encompassed by Code § 40.1-27.3.
The public policy behind the statute “prohibits retaliatory discharge for complaining about failure to follow the Temporary Standards issued by the Governor to combat the spread of COVID-19.”
Overview
Plaintiff sued his employer, alleging two counts of retaliatory discharge based on his claim that his employer fired him after he complained “about inadequate workplace safety measures in response to COVID-19 as dictated in 16VAC25-220, Executive Orders.”
Defendant has demurred to both counts.
Statutory retaliation
Plaintiff has not stated a claim under Code § 40.1-27.3(A)(1), which provides, “‘An employer shall not discharge, discipline, threaten, discriminate against, or penalize an employee, or take other retaliatory action regarding an employee’s compensation, terms, conditions, location, or privileges or employment, because the employee:
“‘(1) or a person acting on behalf of the employee in good faith reports a violation of any federal or state law or regulation to a supervisor or to any governmental body or law-enforcement official. …
“The allegations contained in the Complaint fail to allege a good faith report of a violation of any federal or state law or regulation to a supervisor. The allegations of ‘voicing concerns’ or ‘objecting to a cavalier attitude’ are simply not enough to support a claim that Plaintiff in good faith reported a violation to a supervisor. Therefore, Plaintiff fails to state a claim under (A)(l). …
“In order to maintain a cause of action under (A)(4) the Complaint must allege that the employee refused an employer’s order to perform an action that violated any federal or state law or regulation and the employee informed the employers that the order was being refused for that reason.
“There is no allegation anywhere in the complaint that Plaintiff in this matter refused such an order and informed either a supervisor or the employer that the order was being refused because it violated a federal or state law or regulation.
“Plaintiff has failed to state a claim under any provision in Va. Code § 40.1- 27.3. Accordingly, Defendant’s Demurrer as to Count I is sustained, with leave to amend.”
Public policy retaliation
In Count II, plaintiff has stated a Bowman type 2 claim for retaliatory discharge in violation of public policy.
In Bowman v. State Bank of Keysville, 229 Va. 534 ( l985), the Virginia Supreme Court created two exceptions to at-will employment doctrine. A type 1 claim arises when an employer interferes with an employee’s exercise of a statutory right. A type 2 claim allows an employee to sue for wrongful discharge based on violation of a public policy “as embodied in a statute. …
“Plaintiff relies on the public policy underlying §40.1-27.3 to support his Bowman, type 2 claim. Va. Code §40.1-27.3 is clearly designed to protect individuals who ‘blow their whistle’ against employers who are in violation of a state or federal law or regulation.
“In this matter, Plaintiff alleges that he was terminated for voicing concerns over workplace safety issues as they relate to the Temporary Standards and Executive Orders relating to COVID-19. The issue is not whether the Temporary Standards or Executive Orders determine public policy; they do not, only the Virginia General Assembly determines public policy.
“The issue is whether the policy underlying Va. Code §40.1-27.3 is broad enough to support a claim under Bowman where the allegation is that the employee was terminated for voicing concerns over violation s of workplace standards.
“Keeping in mind the narrowness of the exception under a Bowman type 2 scenario, the Court finds that the public policy underlying §40.1-27.3 prohibits retaliatory discharge for complaining about failure to follow the Temporary Standards issued by the Governor to combat the spread of COVID-19.
“Even though Plaintiff failed to state a claim under the actual language of §40.1-27.3, he has stated a claim for a retaliatory discharge in violation of the public policy embodied by that statute. Additionally, Plaintiff is a member of the class the statute is designed to protect.”
The demurrer as to Count II is overruled.
Chenault v. RBI Corp., Oct. 22, 2021, Hanover Circuit Court (Kelly). Harris Butler, Courtney M. Malveaux for the parties. VLW 021-8-122, 5 pp.
