Virginia is known as a stalwart adherent to the doctrine of employment at-will. The courts in Virginia have long recognized that the employment relationship is for an indefinite term and may be terminated for any reason or no reason, at any time, with or without cause or notice. This right, known as employment at-will, can be contracted away by the parties; both oral and written contracts are recognized in Virginia.
Absent a contractual restriction or a right to continued employment established under statutory law (e.g. job protected absences under the Family and Medical Leave Act or military laws), an employer may terminate an employee at-will. The courts have recognized one major caveat to this right – the termination cannot be contrary to public policy.
In a case decided in January, the Fourth Circuit Court of Appeals (Weidman v Exxon Mobil Corporation, No 13-2007 (4th Cir. Ct., 2015)) further delineated what may be against public policy. An employee of Exxon Mobil Corporation, who served as a medical doctor in one of the company’s medical clinics, was allegedly fired in retaliation for internally reporting illegal pharmacy practices engaged in by a number of the clinics. The employee buttressed his case by citing company policies and training sessions assuring employees that they “would never suffer retaliation for reporting violations” of the law.
As a result of making these reports, the employee alleged that he was frequently reprimanded, placed on a performance improvement plan, and suffered other adverse and often hostile actions including being told he was a pedophile which ultimately led to his termination.
The Virginia Supreme Court has recognized three situations in which a termination may be in violation of public policy: “(1) where an employer fired an employee for exercising a statutorily created right; (2) when the public policy is explicitly expressed in the statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; and (3) where the discharge was based on the employee’s refusal to engage in a criminal act.”
In the facts before the court, there was no allegation that there was neither a specific statute that was violated by the employer nor had the employee refused to engage in a criminal activity. The court, however, found that there did not have to be a per se refusal to engage in a criminal activity and it would be sufficient if the act refused to be engaged in had “criminal consequences.” The case was remanded to the trial court for a determination of the facts.
As a result of this decision, the scope of the public policy exception to employment at-will has been expanded. All that an employee alleging that a termination was wrongful may have to show is there is a nexus between the conduct reported by the employee and a consequence which could lead to a criminal prosecution.
