Under Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985), an at-will employee in Virginia may bring a common law claim of wrongful discharge if the employee’s termination violates Virginia’s public policy. While these types of claims are a “narrow” exception to the general rule of employment at-will, they may provide recourse for an employee whose termination violates a clear statement of Virginia public policy.
Default Rule of At-Will Employment
The Supreme Court of Virginia has observed that “Virginia strongly adheres to the employment-at-will doctrine,” whereby employment is presumed to last for an indefinite period and may be terminated at will by either employer or employee. VanBuren v. Grubb, 284 Va. 584, 733 S.E.2d 919, 921 (2012) (internal quotation marks omitted).
Bowman’s Public Policy Exception to At-Will Employment
In Bowman, however, the Supreme Court of Virginia recognized “a narrow exception to the employment-at-will rule.” In that case, the Court permitted a bank’s at-will employees, who also owned shares of the bank’s common stock, to bring claims against their former employer, the bank, which allegedly fired the stockholder employees in retaliation for their failure to vote in favor of the bank’s proposed merger. Bowman, 331 S.E.2d at 800–01. The Court held that the at-will employees had a wrongful discharge claim because the alleged discharges violated the public policy of the Commonwealth as stated in Va. Code § 13.1–32, now Va. Code § 13.1–662. Id. The Court reasoned that “[b]ecause the right conferred by statute is in furtherance of established public policy, the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered discretion of a shareholder to vote freely his or her stock in the corporation.” 331 S.E.2d at 801.
Therefore, under Bowman, an at-will employee may bring a common law claim of wrongful discharge if the employee’s termination violates Virginia’s public policy. See Schmidt v. Bartech Grp., Inc., 119 F. Supp. 3d 374, 384 (E.D. Va. 2014), aff’d, 620 F. App’x 153 (4th Cir. 2015).
Three Categories of Bowman Claims
Under the Bowman exception, employers are prohibited from “discharges which violate public policy, that is, the policy underlying existing laws designed to protect the property rights, personal freedoms, health, safety, or welfare of the people in general.” Miller v. SEVAMP, Inc., 234 Va. 462, 362 S.E.2d 915, 918 (1987) (emphasis omitted). Virginia courts have recognized three categories in which an employee may demonstrate that his termination violates public policy under Bowman:
- where an employer violates “a policy enabling the exercise of an employee’s statutorily created right,”
- “when the public policy violated by the employer was 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
- “where the discharge was based on the employee’s refusal to engage in a criminal act.”
Rowan v. Tractor Supply Co., 263 Va. 209, 559 S.E.2d 709, 711 (2002).
Notably, an employee plaintiff attempting to assert under Bowman a wrongful discharge claim in violation of public policy must “identify [a] Virginia statute establishing a public policy” that was violated by the employer. Lawrence Chrysler Plymouth Corp. v. Brooks, 251 Va. 94, 465 S.E.2d 806, 809 (1996). “While virtually every statute expresses a public policy of some sort, [the Supreme Court of Virginia] continue[s] to consider” the Bowman exception to be “narrow” because “termination of an employee in violation of the policy underlying any one statute does not automatically give rise to a common law cause of action for wrongful discharge.” Rowan, 559 S.E.2d at 711 (internal brackets omitted) (quoting City of Virginia Beach v. Harris, 259 Va. 220, 523 S.E.2d 239, 245 (2000)). Rather, only in the three circumstances identified above has the Supreme Court of Virginia held that claims were sufficient to constitute a common law action for wrongful discharge under Bowman’s public policy exception.
In sum, under Bowman an at-will employee in Virginia may bring a common law claim of wrongful discharge if the employee’s termination violates Virginia’s public policy. While these types of claims are a “narrow” exception to the general rule of employment at-will, they provide some protection for an employee whose termination violates a clear statement of Virginia public policy and falls within one of the three categories identified in Rowan.
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