Limited Circumstances for Wrongful Discharge Claims in Virginia

On February 23, 2017, the Supreme Court of Virginia issued its opinion in Francis v. National Accrediting Commission of Career Arts & Sciences, 293 Va. 167 (2017).  In Francis, the Court relied on its earlier decision in Bowman v. State Bank of Keedysville, 229 Va. 534 (1985), which established a public policy exception to Virginia’s employment at-will doctrine, to hold that a successful claim for wrongful discharge must show that the employer’s termination violates public policy.

In Francis, Plaintiff was involved in an altercation with a co-worker in which the co-worker made threats to Plaintiff’s well-being.  As a result, Plaintiff obtained a preliminary protective order and the order was served on the co-worker at their place of business.  Shortly thereafter, Plaintiff was terminated by her employer.  Plaintiff filed suit alleging wrongful discharge in violation of public policy, and Defendant filed a demurrer.  The Circuit Court sustained the demurrer, and on appeal, Plaintiff argued that her employer violated public policy by terminating her for obtaining a protective order.  In support, Plaintiff cited to the stated purpose of Virginia’s Protective Order Statutes, which is “to protect the health and safety of the petitioner or any family or household member of the petitioner.”

The Supreme Court of Virginia rejected Plaintiff’s arguments, holding that the public policy exception did not apply because “a viable Bowman claim in this context would require a showing that the termination of employment itself violated the stated public policy of protection of health and safety.  Here, it does not.”  Francis, 293 Va. at 174 (emphasis in original).  Thus, this decision makes clear that it is not enough to merely claim a violation of public policy.  Rather, in accordance with Bowman, it must be shown that the termination violated the public policy, and plaintiffs must demonstrate how the public policy was violated by the termination.

In light of the holding in Francis, it seems clear that the Supreme Court of Virginia will continue to narrowly construe the public policy exception for claims of wrongful termination.  Therefore, at the outset of litigation, practicing attorneys should analyze the scope of the public policies underlying a wrongful termination claim, and assess the potential for a demurrer.