Hi, How Can We Help You?

Employees Continue to Face a T...

Employees Continue to Face a Tough Road to Establishing Exceptions to At-Will Employment

In Virginia, as in many states, employees are considered to be at-will, meaning that either party may terminate the employment relationship at any time and for any reason.  However, the Virginia Supreme Court has carved out a narrow exception to at-will employment when the termination of employment violates Virginia’s public policy.  As a recent case shows, courts are very hesitant to enlarge the exception to at-will employment.

In the 1985, the Virginia Supreme Court first recognized that employers could not avoid liability for wrongful termination of an at-will employee if the employee’s termination violates public policy.  However, Virginia courts have concluded that the exception to at-will employment arises in only three circumstances.  First, an exception to at-will employment may exist where the employee’s termination violates a public policy enabling the exercise of the employee’s statutorily created right.  Second, an exception to at-will employment may exist where the public policy violated by the employer was explicitly expressed in a statute and the employee was clearly a member of the class of persons directly entitled to the protection enunciated by the public policy.  Lastly, an exception to at-will employment exists where the employee’s discharge was based on the employee’s refusal to engage in a criminal act.

In Williams v. Commonwealth of Virginia, the Eastern District of Virginia recently refused to allow a claim for wrongful discharge to proceed because the plaintiff had not adequately pled sufficient facts to establish the at-will employment exception.  In Williams, the employee claimed that she was terminated from her position at the State Board of Elections (“SBE”) because of complaints she made to the Commonwealth’s Fraud, Waste and Abuse Hotline to report perceived improprieties with respect to the SBE’s procurement process.  The employee claimed that the State Employee Fraud, Waste, and Abuse Hotline, which was created pursuant to an Executive Order, embodies the relevant public policy that was violated by her termination.

The court rejected the employee’s claim, noting that Virginia courts have construed the exception to at-will employment very narrowly.  The court held that the plaintiff did not allege that her termination was related to her exercise of a statutorily created right, she did not argue that the defendants violated a public policy expressed in a statute where she was a member of a protected class (indeed, she alleged only a violation of public policy expressed in an executive order), and she did not allege that her discharge was a result of her failure to engage in criminal conduct.  Since the claim did not neatly fit into any of these three criteria, the court refused to extend the public policy exception to at-will employment to encompass the facts of the plaintiff’s case and it dismissed the claim.

The Williams case is a reminder of the extraordinary difficulty of successfully establishing an exception to at-will employment in Virginia.  Courts will construe such claims very narrowly and even the slightest deviation from the previously-established exceptions to at-will employment will likely result in dismissal.