by Alison Ferland, VCOG 2003 summer intern

This year the Virginia Fraud Against Taxpayers Act went into effect. That Act provides protection and job security, as well as financial compensation, to citizens who file suit on behalf of the government, and blow the whistle on acts of fraud against the state perpetrated by private companies or individuals. There seems to be, however, no similar sweeping protection accorded to those whistleblowers who reveal private improprieties or to those who report irregularities committed by the government itself.

When asked about the protections provided to whistleblowers in Virginia, Charlottesville labor and employment attorney Brock Green answered frankly: there are virtually none.

In Virginia, there is neither an explicit statutory protection for whistleblowers nor any statutory recognition of a whistleblower's retaliatory discharge claim.

While Virginia case law has recognized some exceptions to the common law doctrine of employment-at-will, Virginia courts have consistently refused to recognize whistleblowers' claims as one.

As University of Virginia School of Law Professor Rip Verkerke observes, "As it relates to private employers and individuals in their relationships with the private employers, Virginia's employment law tends to be...a pro-employer environment." What that means, adds Verkerke, who is also the director of the program for employment and labor law studies at UVA, "is that as compared to other states around the country, Virginia is less likely to recognize claims for wrongful discharge in a whole variety of contexts."

In the 1999 case Dray v. New Market Poultry Products Inc., a woman claimed she was fired in retaliation for reporting unsanitary conditions at a private chicken processing plant to an on-site government inspector.

"In the present case, the plaintiff seeks to mount a generalized, common-law whistleblower' retaliatory discharge claim. Such a claim has not been recognized as an exception to Virginia's employment-at-will doctrine, and we refuse to recognize it today," the Virginia Supreme Court opined.

In Lawrence Chrysler Plymouth Corporation v. Brooks, the court rejected the respondent's claim that the company had discharged him in violation of public policy as retaliation for his refusal to repair an automobile in what he considered an unsafe fashion. The court was unwilling to extend the established exception to the employment-at-will doctrine to encompass discharges which violate only private rights or interests.

"The protections for private employees are about zero, unless their employer is a government contractor and they discover some kind of fraud against the government&then they can report their own employer and there are some protections there," explained Green.

Correspondingly, in the 1995 case McBroom v. DynCorp, the court found that the billing improprieties practiced by the corporation, and revealed by the plaintiff, constituted fraud against the Commonwealth, and that the discharge of the plaintiff was accordingly contrary to public policy.

As many as 38 states—including Maryland, West Virginia, and New York—have laws affording special protections to whistleblowers who are employees of their own state or local governments. Virginia does not.

Verkerke explains that when it comes to public employees, protection can occasionally be found in whatever relevant statutes exist, but still in Virginia there isn't much in the way of state statutory protection.

"Essentially, I think the lesson that one can draw from this is that Virginia workers pretty much have to look to statutes for any protection," he says.

As Green phrases it, "There's not a whole lot of general protection for folks who blow whistles." .