Wrongful Discharge Claims Recognized in Virginia if Employee Complains About Unpaid Wages Before Termination

A man who alleges that his employer fired him for complaining about his unpaid wages, can sue his employer for wrongful discharge under the Bowman exception to Virginia’s at-will employment doctrine.  In the federal case of Lester v. TMG, Inc., Civil Action No. 2:12cv421 (Sep. 3, 2012), the company sought to dismiss the employee’s claim, arguing that because Virginia is an at-will employment jurisdiction, the employee could have been terminated at any time, with or without cause.

Judge Smith, of the U.S. District Court of the Eastern District of Virginia, Norfolk Division, determined that the employee’s wrongful termination claim was properly brought before the court, as it fell within the Bowman exception.  While it is true that Virginia adheres to the employment-at-will doctrine, the Virginia Supreme Court has recognized a very narrow exception to the doctrine.  This exception is commonly referred to as the “Bowman exception” and disallows employers from terminating individuals if the termination would violate Virginia’s public policy.  An employee falling within the Bowman exception may sue his employer for common-law wrongful discharge.

In this case, the employee claimed that his employer promised to pay him a specific salary, as well as bonus and commission payments, which the employee did not receive.  According to the employee, he sent an email to the company protesting its failure to pay his wages.  The employee alleged that he was terminated, in part, because he sent this email requesting wages.  In other words, the employee argued that he fell within the Bowman exception because his discharge violated the policy of Virginia’s Wage and Payment Act.  The court agreed.

Since Virginia’s Wage and Payment Act does not explicitly state that it falls within the public policy of this Commonwealth, it became necessary for the court to consider whether the law was designed to protect property rights, personal freedoms, health, safety, or welfare of the public.  In this case, the court relied on Virginia precedent and held that “an individual’s right to compensation implicated a property right that falls within the Bowman exception.”  In short, employees do have property rights in their wages.  Thus, if an individual is terminated for complaining about unpaid wages, the individual may have a claim against his former company for committing the tort of wrongful discharge.

While there are not many recognized exceptions to the at-will employment doctrine, an individual’s right to compensation is now considered to be a well-recognized exception.  Virginia’s Wage and Payment Act falls within the Bowman public policy exception, and businesses should strongly consider speaking with counsel before terminating an employee that has complained about unpaid wages.