Virginia’s new whistleblower protection law, HB 798, becomes effective July 1, 2020. It provides a host of broad protections for employees who suffer retaliatory conduct by their employer. A key aspect of this law is the issue of timing. Understanding this issue is critical to the success or failure of whistleblower claims.
Predictably, the business lobby expresses concern over the new law. Business groups claim the law allows almost any employee to conjure up, facing the prospect of performance related discipline or discharge, some purported misdeed about which the employee contends they have complained in order to avoid termination or to file suit.
The issue of timing is vitally important to whistleblower claims. While studies consistently show that the concerns of baseless lawsuits to be unfounded, courts throughout the country are suspect are whistleblower claims that occur at the same time or subsequent to termination.
A few areas employees should be aware of before making a claim of retaliation under the new whistleblower law:
- Was the employee’s whistleblowing conduct prior to the date of termination?
- Courts are highly suspicious of the authenticity of an employee’s whistleblowing when it occurs at the same time as that of termination.
- Did the employer have a clearly delineated whistleblower policy of which the employee was aware prior to the alleged retaliation?
- If the employee was unclear as to which supervisor to inform of unethical conduct, it is harder for the employer to claim the employee failed to follow proper protocol in whistleblowing.
- Did the employer investigate the employee’s whistleblowing allegation prior to termination?
- If the employer failed to investigate the employee’s whistleblowing prior to termination, it is harder for the employer to argue they took the employee’s allegations seriously.
- If the employer alleges performance issues for the employee, were those issues documented prior to the employee’s whistleblowing?
- If the employer does not have documentation of the employee’s alleged performance issues prior to the employee’s whistleblowing conduct, it is more difficult for the employer to argue termination is related to job performance rather than retaliation for statutorily protected whistleblowing.
Any of the above issues can have a significant effect on a case, either positively or negatively. Potential whistleblowers should think carefully about these issues and secure documentation whenever possible.
 See e.g., Berber v. Wells, 1:16-cv-24918-JEM. Unpublished. (Jan. 8, 2020, 11th Cir).