Virginia Recognizes Individual Liability For Wrongful Discharge

In VanBuren v. Grubb, No. 120348 (Nov. 1, 2012), a sharply divided Supreme Court of Virginia surprised employers by holding that a common law tort action for wrongful discharge in violation of public policy may be brought against an individual manager or supervisor.

Wrongful Discharge in Virginia

Unlike many states that have substantially revised and effectively limited the operation of the employment-at-will doctrine, Virginia has rejected similar efforts for decades. Today, Virginia is one of the few states that continues to "strongly adhere" to the traditional employment-at-will doctrine. Exceptions to employment at will in Virginia are both few in number and narrow in scope. The state supreme court created one such exception in Bowman v. State Bank of Keysville, 229 Va. 534 (1985), holding that a corporate employer could be held liable in tort for wrongfully discharging two shareholder employees of the corporation for refusing to vote their shares in accordance with the wishes of the board of directors.

In the 27 years since Bowman, the Supreme Court of Virginia has granted review of several cases in which plaintiffs alleged that their terminations violated public policy. In each case, the court emphasized that the Bowman exception to the at-will doctrine is "narrow" and that simple 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 v. Tractor Supply Co., 263 Va. 209, 213 (2002). Rather, an employee's discharge will support a Bowman claim only where the termination:

violated a policy enabling the exercise of an employee's statutorily created right; violated a public policy that was explicitly expressed in a statute and the employee was clearly a member of that class of persons directly entitled to the protection enunciated by the public policy; or was based on the employee's refusal to engage in a criminal act. The Case Before the Court

The Supreme Court of Virginia's decision in VanBuren v. Grubb concerned a claim rooted in the third category. And, like many cases that result in the expansion of common law torts, the allegations made in this case may have influenced the court's decision to expand the wrongful discharge doctrine.

The plaintiff was employed as a nurse by the Virginia Highlands Orthopedic Spine Center from December 2003 until her termination in March 2008. The plaintiff claimed that she had been continually harassed throughout her...