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The "Bowman Exception" to Virginia's Doctrine of At-Will Employment

Last week I wrote a post about a very specific and limited type of employment discrimination claim recognized in Virginia--the whistleblower protection provisions of the Virginia Fraud Against Taxpayers Act. Today's post takes a step back to provide a very broad overview of the "Bowman exception" to Virginia's general adherence to the doctrine of at-will employment.

In 1985, the Supreme Court of Virginia decided the case of Bowman v. State Bank of Keysville, in which the Court found that there exists a public policy exception to the at-will employment doctrine. Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985). In Bowman, the plaintiffs, who were also shareholders of the defendant, alleged that they had been terminated for refusing to vote their shares in favor of a merger supported by their managers. In evaluating the plaintiffs' claims, the Court determined that the terminations were in violation of public policy contained within Virginia's statutes regarding corporations and shareholders' rights and, therefore, provided an exception to the general at-will employment doctrine. 

In the nearly thirty years since Bowman, the courts have continued to define and apply the public policy exception to specific scenarios. The exception has been defined as "narrow." City of Virginia Beach v. Harris, 523 S.E.2d. 239 (Va. 2000). Viable Bowman claims for wrongful discharge are limited to three factual circumstances:

1. The employer violates a public policy enabling the exercise of an employee's statutorily-created right;

2. The public policy violated by the employer is explicitly expressed in a statute and the employee is clearly a member of the class of persons directly entitled to the protection enunciated by the public policy; or

3. The discharge is based upon the employee's refusal to engage in a criminal act.

Rowan v. Tractor Supply Co., 559 S.E.2d 709 (Va. 2002). 

Application of the three recognized public policy exceptions will continue to evolve as new cases and new theories come before the courts and as legislative changes to the Code of Virginia are made. For now, it should be kept in mind the the Bowman exception is narrow and does not automatically provide for a viable claim in every situation even where a policy concern may be involved. 

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