Virginia Whistleblower Laws: Protections and How to Report

Virginia's Whistleblower Protection Law (Va. Code 40.1-27.3) prohibits private employers from retaliating against employees who report violations of federal or state law in good faith. Effective July 1, 2020, the law covers private sector workers, protecting employees who report to a supervisor, a governmental body, or law enforcement. State and local government employees are covered separately under the Fraud and Abuse Whistleblower Protection Act, discussed below.

Overview of Virginia Whistleblower Laws

Virginia is an employment-at-will state, meaning employers can generally terminate employees for any reason or no reason. However, Virginia has developed a substantial network of whistleblower protections through both common law and multiple statutes.

A major turning point came on July 1, 2020, when Virginia enacted a broad new Whistleblower Protection Law (Va. Code 40.1-27.3) that extended protections to private sector employees for the first time. Before this law, private sector workers had limited options for whistleblower retaliation claims. Combined with the Fraud and Abuse Whistleblower Protection Act for government employees and the Virginia Fraud Against Taxpayers Act for qui tam lawsuits, Virginia now offers comprehensive protections.

Federal whistleblower protections also apply to all Virginia workers. For a complete overview, see our guide to Federal Whistleblower Laws.

Common Law Protections

Virginia recognizes a public policy exception to the employment-at-will doctrine. Under this exception, employers cannot terminate employees for reasons that violate clearly established public policy. Courts rely on statutes, constitutional provisions, and prior judicial opinions to identify applicable public policies.

Virginia's common law protections generally cover employees who:

• Exercise a legal right or privilege recognized by statute or public policy
• Refuse to participate in criminal activities

While common law claims remain available, the 2020 Whistleblower Protection Law has largely expanded and codified these protections into statutory form.

Virginia Whistleblower Protection Law (Private Sector)

The Virginia Whistleblower Protection Law, codified at Va. Code 40.1-27.3, took effect on July 1, 2020, and provides broad protections for private sector employees. It does not cover state or local government employees, who are protected instead under the Fraud and Abuse Whistleblower Protection Act discussed below.

Who Is Protected

The law covers full-time and part-time employees in the private sector. It does not extend to state and local government employees, who are covered instead by the separate Fraud and Abuse Whistleblower Protection Act described below. This 2020 law was a significant expansion from prior Virginia law, which offered limited protections for private sector workers.

Protected Activities

Employers cannot discharge, discipline, threaten, discriminate against, penalize, or take other retaliatory action against an employee for:

• Reporting in good faith a violation of federal or state law or regulation to a supervisor, governmental body, or law enforcement official
• Being asked by a governmental body or law enforcement official to participate in an investigation, hearing, or inquiry
• Refusing to participate in criminal activities that may subject the employee to criminal liability
• Refusing to carry out a directive by the employer that would violate federal or state law or regulation (the employee must inform the employer of the reason for the refusal)
• Providing information to or testifying before a governmental body or law enforcement official conducting an investigation into the employer's violations of federal or state law or regulation

Important Limitations

The statute does not authorize the disclosure of false information, information protected by a law or legal privilege, or disclosures that may violate federal or state law. Good faith is a requirement for protection.

Remedies

Employees who prevail under this law may recover:

• Injunctive relief to stop the retaliatory action
• Reinstatement to the former position or an equivalent position
• Lost wages, benefits, and other remuneration, together with interest
• Litigation costs, including reasonable attorney's fees

Statute of Limitations

Lawsuits under the Whistleblower Protection Law must be filed within one year of the retaliatory action.

Fraud and Abuse Whistleblower Protection Act

The Fraud and Abuse Whistleblower Protection Act, codified at Va. Code 2.2-3010 through 2.2-3014, provides additional protections for government employees and citizen whistleblowers. Va. Code 2.2-3010 defines "governmental agency" to include state executive-branch agencies, institutions, boards, bureaus, commissions, councils and independent agencies, and also any county, city or town, any local or regional governmental authority, and any local school division. Local government and school division employees are therefore covered by this Act alongside state employees. The same section defines a covered "employee" as a person regularly employed full time by a governmental agency.

Government Employee Protections

Under Va. Code 2.2-3011, employers cannot discharge, threaten, or discriminate against a whistleblower or a representative of a whistleblower. Protection also extends to employees who receive a request or subpoena from an appropriate authority to participate in an investigation, hearing, inquiry, or court action.

Citizen Whistleblower Protections

Under Va. Code 2.2-3010.1, no governmental agency may threaten, discriminate against, or retaliate against a citizen whistleblower for receiving a request or subpoena to participate in an investigation, hearing, inquiry, or court action.

Remedies

A civil penalty is possible but not automatic. Under Va. Code 2.2-3011(D), a court that finds a violation was willfully and knowingly made may impose on the employer a civil penalty of not less than $500 and not more than $2,500, and that money is paid into the Fraud and Abuse Whistle Blower Reward Fund rather than to the employee. Aggrieved employees may recover:

• Reinstatement to the former position or equivalent position
• Back pay
• Full reinstatement of fringe benefits and seniority rights
• Litigation costs, including reasonable attorney's fees

A whistleblower whose information leads to a recovery by the Commonwealth may also receive a reward of up to 10 percent of the amount recovered, paid from the Fraud and Abuse Whistle Blower Reward Fund. A lawsuit under this Act must be filed within three years after the retaliation occurs.

Virginia Fraud Against Taxpayers Act

The Virginia Fraud Against Taxpayers Act allows whistleblowers to file qui tam lawsuits on behalf of the Commonwealth against individuals or entities that defraud the state using taxpayer funds.

What Conduct Is Covered

The Act targets anyone who:

• Knowingly presents false or fraudulent claims for payment with state funds
• Misappropriates state property
• Deceptively avoids binding obligations to pay the state
• Conspires to commit any of these violations

Qui Tam Provisions and Whistleblower Awards

Private individuals may bring civil actions on behalf of the Commonwealth. If the action succeeds:

• If the Virginia Attorney General intervenes, the whistleblower receives 15% to 25% of the recovered amount
• If the whistleblower prosecutes the case without government intervention, the award increases to 25% to 30%

Penalties

Violators may be ordered to pay:

• Up to three times the actual harm to the state
• Civil fines for each violation

Anti-Retaliation Protections

The Act prohibits employers from discharging, threatening, or retaliating against whistleblowers who file qui tam actions. Successful retaliation claimants may receive reinstatement with full seniority status, compensation for special damages, litigation costs, and reasonable attorney's fees.

Filing Deadlines

Qui tam complaints must generally be filed within six years of the violation. In certain circumstances, the deadline may be extended to up to ten years.

Additional Whistleblower Protections

Virginia has several other statutes that protect employees who report specific types of wrongdoing.

Occupational Safety and Health

Under Va. Code 40.1-51.2:1, no person may discharge or in any way discriminate against an employee because the employee filed a safety or health complaint or testified or otherwise acted to exercise rights under the safety and health provisions of Title 40.1.

The procedure and the remedies are in a separate section, Va. Code 40.1-51.2:2. An employee who believes he was discriminated against must file a complaint with the Commissioner of Labor and Industry within 60 days after the violation occurs or be barred from relief under that section. The Commissioner investigates and attempts conciliation, and may bring an action in circuit court; if the Commissioner declines to issue a charge, the employee may bring the action in circuit court instead. The court may restrain continued violations and order rehiring or reinstatement to the former position with back pay plus interest at a rate not to exceed eight percent per annum.

Workers' Compensation

Under Va. Code 65.2-308, no employer or person may discharge an employee "solely because" the employee intends to file or has filed a workers' compensation claim, or has testified or is about to testify in a proceeding under the Workers' Compensation Act. That limiting word is part of the statute: the section reaches only a discharge made solely for that reason, so an employer that can point to another genuine reason for the termination falls outside it. Claims must be filed within two years. Remedies include injunctive relief, reinstatement with back pay and interest, actual damages, attorney's fees, and other appropriate relief.

Asbestos, Lead, and Home Inspection Contractors

Under Va. Code 54.1-515, employers cannot retaliate against employees who file complaints or cooperate with government agencies enforcing laws related to asbestos, lead, or home inspection contractors. Violations may result in criminal penalties: a Class 1 misdemeanor for the first two violations and a Class 6 felony for a third or subsequent violation within three years. Civil penalties up to $1,000 for initial violations and $5,000 for subsequent violations also apply.

Nursing and Assisted Living Facilities

Under Va. Code 63.2-1730 and 63.2-1731, assisted living facilities, adult day care centers, and child welfare agencies cannot retaliate against individuals who assert rights under federal or state law, assist others in asserting such rights, cooperate with government agencies, or report the abuse or neglect of a child or adult in good faith.

How to File a Whistleblower Complaint in Virginia

Filing a Lawsuit Under the Whistleblower Protection Law

Employees who experience retaliation may file a lawsuit in the appropriate Virginia court within one year of the retaliatory action. No administrative filing is required before pursuing a lawsuit. That year runs from the retaliatory action itself, so get a free case evaluation from a Virginia employment lawyer on the court filing before that year ends (attorney advertising).

Filing with the Department of Labor and Industry

For workplace safety retaliation, contact the Virginia Department of Labor and Industry at (804) 371-2327. The complaint must be filed with the Commissioner of Labor and Industry within 60 days after the violation occurs, or relief under Va. Code 40.1-51.2:2 is barred.

Filing a Qui Tam Action

For fraud claims under the Virginia Fraud Against Taxpayers Act, complaints are filed under seal in state court and served on the Virginia Attorney General, who determines whether to intervene.

Practical Tips for Virginia Whistleblowers

• Be aware that the general whistleblower law has a one-year statute of limitations, while workplace safety complaints have an even shorter 60-day deadline.
• Reports must be made in good faith to qualify for protection.
• If refusing an employer directive, inform the employer of your reason for the refusal to preserve your protection.
• Document all reports and communications in writing.
• Consult an employment attorney experienced in Virginia whistleblower law to determine which statutes apply to your situation.

More Virginia Laws

• Virginia At-Will Employment Laws
• Virginia Employee Monitoring Laws
• Virginia Final Paycheck Laws
• Virginia Workers Compensation Laws

Frequently Asked Questions

Does Virginia's whistleblower law protect private sector employees?

Yes. Since July 1, 2020, Virginia Code 40.1-27.3 provides broad whistleblower protections for private sector employees, including full-time and part-time workers. It does not cover state and local government employees, who are protected instead under the separate Fraud and Abuse Whistleblower Protection Act. This was a significant expansion from prior law, which offered limited protections for private sector workers.

Can I file a qui tam lawsuit in Virginia?

Yes. The Virginia Fraud Against Taxpayers Act allows private citizens to file qui tam lawsuits on behalf of the Commonwealth against entities that defraud the state. If successful, whistleblowers can receive between 15% and 30% of the recovered funds.

How long do I have to file a whistleblower retaliation claim in Virginia?

Under the general whistleblower law (Va. Code 40.1-27.3), you have one year from the retaliatory action. Claims under the Fraud and Abuse Whistleblower Protection Act (for state and local government employees and citizen whistleblowers) must be filed within three years. Workers' compensation retaliation claims have a two-year deadline. Occupational safety complaints must be filed with the Commissioner of Labor and Industry within 60 days. Qui tam lawsuits must generally be filed within six years of the violation.

Am I protected if I report a violation only to my supervisor?

Yes. Unlike some states, Virginia's 2020 whistleblower law specifically protects employees who report violations to a supervisor, not just to external governmental bodies or law enforcement. The report must be made in good faith.

What remedies are available for whistleblower retaliation in Virginia?

Under the general whistleblower law, you can seek injunctive relief, reinstatement, lost wages and benefits with interest, and reasonable attorney's fees. Under the Fraud and Abuse Whistleblower Protection Act, a court that finds a violation was willfully and knowingly made may also impose a civil penalty of $500 to $2,500 on the employer, but that penalty is discretionary and is paid into the Fraud and Abuse Whistle Blower Reward Fund rather than to you.