When an employment relationship sours, and a termination results, an employee may harbor the idea that he or she has a wrongful discharge claim. Employees frequently use the label “wrongful discharge” to denote a broad range of claims for the unlawful firing of an employee. In Virginia, wrongful discharge can be a legal term of art, and, until recently, it has meant a very narrowly circumscribed set of actionable claims. The state of the law may be changing, however.
In a recent case, the Virginia Supreme Court advised the United States Court of Appeals for the Fourth Circuit that Virginia law would recognize the liability of an employee for the tort of wrongful discharge. The potential for an employer to be liable for a wrongful discharge was not in question. The novel twist in the question before the Court was whether the supervisor of the allegedly wrongfully discharged employee also could be held liable for that tort. In a sharply divided Virginia Supreme Court opinion, over the dissents of Justice Kinser who was joined by Justices Goodwyn and McClanahan, the Virginia Supreme Court held that a supervisory employee may be liable for the wrongful discharge of the employer.
The majority opinion noted that the actual predicate giving rise to a wrongful discharge claim remains narrowly construed under Virginia law. The majority also noted that recognizing another employee’s potential liability for the employer’s wrongful discharge would be consistent with agency law principles by which “employers and employees are deemed to be jointly liable and jointly suable for the employee's wrongful act.” Both the majority and dissenting opinions drew on out-of-state legal decisions in support of their stated rationales.
Justice Kinser’s dissenting opinion pointed out, however, that, at present, there exists no precedent in Virginia for the proposition that one employee may be liable to another for carrying out a wrongful discharge by the employer. Justice Kinser noted that “the legal duty at issue in a claim for wrongful discharge does not flow from one employee to another employee.” She noted that although the Court’s majority opinion was intended to further the policy of deterring a wrongful discharge in the workplace, “such policy determinations are for the General Assembly, not this Court.” The case is VanBuren v. Grubb (Va. 2012).
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