• Virginia Plaintiff Finds New Loophole to Sue Employer for Wrongful Discharge
• Intercepting Wire and Oral Communications
• New Virginia Laws Affect Employers
• EL&P Successfully Appeals Case Before Supreme Court of Virginia

In Virginia, the state of the law regarding wrongful discharge continues to change, as plaintiffs' lawyers have now broken through with one means of escaping the General Assembly's statutory limitations on claims based on sex and race discrimination in employment.

Virginia first recognized a claim for wrongful discharge in Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). In the Bowman case, shareholders claimed they were fired as company employees in retaliation for their refusal to accede to a proposed shareholder action. The Supreme Court gave these plaintiffs a cause of action for wrongful discharge, based on the public policy of the corporation laws regarding the rights of shareholders.

Following Bowman and subsequent cases, wrongful discharge cases in Virginia must be based on some kind of explicit public policy contained in the Virginia Code. Ordinarily, the legislature, rather than the courts, defines the "public policy" of the Commonwealth and what remedies if any may be obtained for violations of public policy. Only last year, the Supreme Court affirmed that there is no generalized whistleblower claim under Virginia law, and reemphasized that employees can only bring claims based on particular kinds of statutes. See Dray v. New Market Poultry Products, Inc., 258 Va. 187, 518 S.E.2d 312 (1999).

Plaintiffs seeking to avoid the limitations of federal law and procedure based wrongful discharge claims on the public policy against employment discrimination contained in the Virginia Human Rights Act. The VHRA prohibits employment discrimination based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability." Va. Code § 2.1-715. A divided Supreme Court recognized a wrongful discharge claim based on the VHRA. See Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In response, the General Assembly deliberately modified the VHRA, to rule out any claims based not only on the VHRA itself but on any other statute reflecting the same policies as the VHRA. Va. Code § 2.1-725(D). The Supreme Court applied the amendment as the legislature intended in dismissing a number of wrongful discharge claims See Conner v. National Pest Control Ass'n., 257 Va. 286, 513 S.E.2d 398 (1999); Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).

Concurring in Conner, Justice Hassell declared that "[g]ender discrimination should not be countenanced in any manner and victims of such discrimination should be accorded a tort remedy that fully and fairly compensates them for injuries caused by an employer's repugnant conduct," but acknowledged that "the General Assembly of this Commonwealth has chosen to impose limitations on the right of a woman to recover damages against an employer who discriminates against her because of her gender [and] this Court, which does not, and constitutionally cannot, act as a super-legislative body, is required to apply these restrictions as expressed by the General Assembly."

The firm views of members of the Court against employment discrimination encouraged lawyers seeking a way to avoid the legislature's actions. In January of this year, the plaintiffs' bar found a loophole that worked. The plaintiff in Mitchem v. Counts, 523 S.E.2d 246 (Va. 2000), claimed that she was discharged because she refused to engage in unlawful sex with her employer. She based her claim not on the public policy against discrimination in employment, but rather on the public policy supporting the criminal statutes prohibiting assault and fornication. Another divided court approved this reasoning, despite the transparency of the plaintiff's rationale as a means to avoid the clearly expressed intention of the legislature in the amendments to the VHRA.

In Mitchem, the majority reasoned that the public policy against fornication and other unlawful sexual acts stood separate and apart from the public policy reflected in the VHRA. The three dissenting justices pointed out that plaintiff's claim was no more or less than the type of claim outlawed by the legislature following Lockhart, and chastised the majority for overstepping the bounds of judicial authority in precisely the manner Justice Hassell recognized as improper in his concurring opinion in the Conner case.

Effects of Mitchem

Already, other courts have begun to apply the Mitchem decision, to the detriment of Virginia employers in pending cases. In a decision by Judge Glen Williams in the case of King v. Donnkenny, Inc., 2000 WL 249209 (W.D.Va.), although not a sexual harassment case, the court noted that "Virginia courts are becoming increasingly sympathetic toward plaintiffs who are fired for bringing an employer's criminal transgressions to light where the underlying public policy in outlawing the conduct dictates that citizens are entitled to live free from such activity." Federal courts applying Virginia law are bound by the decisions of the Virginia Supreme Court.

Mitchem does not reopen completely the door that was thought to be closed after Conner and Doss. The limitation of the rationale in Mitchem to criminal statutes suggests that it would have no application in cases of discrimination where there was no criminal conduct involved. Thus, for example, in a case where the plaintiff claimed that she was discharged on account of her pregnancy might remain barred by the anti-Lockhart amendments to the VHRA. Likewise, the Mitchem rationale would not apply in the "hostile environment" kinds of harassment cases, where the plaintiff claims she was constructively discharged by intolerable discriminatory conditions in the workplace, but was not solicited for sex. The Supreme Court has not dealt at length with any claims for constructive discharge, and generalized sexual harassment, involving no criminal conduct, would be outside the Mitchem case.

Steven R. Minor

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In both Tennessee and Virginia it is unlawful to intercept any wire, oral, or electronic communication unless the interceptor is a party to the communication or one of the parties to the communication has consented to the interception. "Recording" a communication and "intercepting" a communication are not the same thing, however, so one can record a communication to which access was gained without "interception."

Tennessee's invasion of privacy statute is found at T.C.A. § 39-13-601 et seq. Under that statute a person commits a criminal offense who, among other things, "[i]ntentionally intercepts … any wire, oral, or electronic communication…"

"'Intercept' means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." T.C.A. § 40-6-303(11). An "'electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than" a telephone used in the "ordinary course of business;" or a "hearing aid … being used to correct sub-normal hearing to not better than normal." T.C.A. § 40-6-303(9).

An in-person conversation (as opposed to a telephone conversation) is an "oral communication" which is defined as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but 'oral communication' does not include any electronic communication." T.C.A. § 40-6-303(14).

Telephone conversations (not including cellular phones which are separately covered under T.C.A. § 39-13-104 and not discussed herein) are "wire communications" defined as "any aural transfer made … through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception…" T.C.A. § 40-6-303(19).

While it is a violation of the Tennessee statute to "intercept" an in-person conversation or a telephone conversation, the Tennessee statute includes an important exception. "It is lawful … for a person … to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the state of Tennessee." T.C.A. § 39-13-601(5). Regardless of participation or consent, it is still "unlawful to intercept any wire, oral, or electronic communication for the purpose of committing a criminal act." T.C.A. § 39-13-601(6).

Thus, I can "intercept" an in-person conversation or telephone conversation to which I am a party or one of the parties consented to my "interception." If I am not a party to the conversation or if one of the parties to the conversation has not given consent, I cannot intercept it. This does not necessarily mean that I cannot record the conversation, however. "Recording" a communication and "intercepting" it are not necessarily the same thing.

"Recording" and "Intercepting" Distinguished

Whether a recording is an "interception" for purposes of the Tennessee statute seems to turn on whether the person recording the conversation was close enough to the speakers to hear it anyway. If that is the situation, the Courts treat the recording as merely a memorialization of a conversation the non-party listener overheard naturally, and not an "interception." See Mimms v. Mimms, 780 S.W.2d 739 (Tenn. App. 1989) (husband's recording of wife's conversation he overheard while hiding near her was not a wiretap because he heard the conversation with his own ears, and as such, there was no "interception"). Thus, the case law suggests that an "interception" requires some positive act to gain access to an otherwise inaudible communication, such as by splicing a phone line or planting a bug in a briefcase in someone's office. United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978) (interpreting the federal wiretapping law upon which Tennessee's is based).

Besides criminal liability, a person who unlawfully intercepts a communication in violation of T.C.A. § 39-13-601 et seq. can also be subject to civil liability. T.C.A. § 39-13-603 provides civil relief to "any aggrieved person whose wire, oral or electronic communication is intentionally intercepted, disclosed, or used in violation of § 39-13-601…" Such "aggrieved person" may recover (1) the greater of (A) actual damages; or (B) statutory damages of $100 a day for each day of violation or $10,000, whichever is greater; and (2) punitive damages; and (3) reasonably attorney's fees and costs. T.C.A. § 39-13-603(a).

A criminal or civil defendant can escape liability if he can show "that there was a good faith reliance on a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization…" T.C.A. 39-13-603(c).

Finally, an action for civil damages must be commenced no later that 2 years "after the date upon which the claimant first discovered or had reasonable opportunity to discover the violation." T.C.A. § 39-13-603(d).

The definitions in Virginia Code § 19.2-61 for "wire communication," "oral communication," intercept," and "electronic, mechanical or other device" are identical to the Tennessee definitions. The language defining the elements of the criminal violation is also very similar to the Tennessee statute. Virginia Code § 19.2-62 states, in pertinent part:

A. Except as otherwise specifically provided in this chapter and person who:
1. Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
4. … shall be guilty of a Class 6 felony.

An exception, similar to that in Tennessee, also exists in Virginia. "It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic, or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." Va. Code § 19.2-62(B)(2).

Virginia, more clearly than Tennessee, recognizes the distinction between "intercepting" and "recording." In Cogdill v. Commonwealth, 219 Va. 272 (1978), the Supreme Court of Virginia recognized:

a basic distinction between an interception of the contents of a communication on the one hand and a recording of the contents on the other. The former is an "aural acquisition," an acquisition by overhearing; the latter is a recordation of what has been thus acquired. The Act proscribes the former when accomplished by use of a defined "device"; the Act does not proscribe the latter, even when accomplished by use of a "device."

Id. at 277. This distinction is recognized because "Congress was concerned with devices that 'overhear' conversations rather than devices that record conversations." Hulcher v. City of Richmond, 1993 WL 946243 (Va. Cir. Ct. Richmond 1993) (citing Smith v. Wunker, 356 F. Supp. 44, 46 (S.D. Ohio 1972)).

Finally, Va. Code § 19.2-69 provides for a civil action in which any "person whose, wire, electronic or oral communication is intercepted" may recover from the interceptor:

1. Actual damages but not less that liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
2. Punitive damages; and
3. A reasonable attorney's fee and other litigation costs reasonably incurred.
A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

Therefore, while the end result of what is and is not lawful concerning wiretaps is the same in Virginia as it is in Tennessee; one small difference between the Tennessee statutes and the Virginia Act is the amount of liquidated/statutory damages that a civil plaintiff can recover. Tennessee allows up to $10,000 in statutory or actual damages, while Virginia puts no limit on actual damages but caps liquidated damages at $1,000.

Another small difference between the Tennessee and Virginia statutes is the applicable statute of limitations for a civil action based on a violation of the wiretapping statutes. As mentioned earlier, the Tennessee statute specifically spells out a two-year statute of limitations. The Virginia statute contains no specific statute of limitations, so one has to look to the general limitations periods spelled out in Title 8.01 of the Virginia Code.

In Eshaghi v. Kunz, 1997 WL 1070539 (Va. Cir. Ct. Chesterfield County 1997), the court held the civil action in that case brought under the Wiretapping Act was not an action for "personal injury," so the two-year statute of limitations prescribed in Va. Code § 8.01-243 did not apply. Rather, the court held that the one-year limitation period in Va. Code § 8.01-248, which applies to "[e]very personal action, for which no limitation is otherwise prescribed" was the appropriate statute of limitations.

While a surreptitious recordation of a conversation may not rise to the level of illegality under federal or state law, an attorney who engages in such conduct or advises another to do so may still be subject to disciplinary action under the applicable state Rules of Professional Conduct. See Gunter v. Virginia State Bar, 238 Va. 617, 385 S.E.2d 597 (1989); Virginia Legal Ethics Opinion, 1738 (2000).

The Tennessee and Virginia Wiretapping statutes are very similar. In short, an individual can "intercept" a face-to-face or telephone conversation if the individual is a party to the conversation or one of the conversation's participants has consented to the "interception." "Recording" is not synonymous with "intercepting," and one can record a conversation so long as it does not require an "interception," defined generally as the use of a "device" to overhear an otherwise inaudible conversation. Attorneys, however, should take note of professional ethics guidelines before engaging in such conduct or advising others to do so.

Eric W. Reecher

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The 2000 Virginia General Assembly has passed two laws, which will affect Virginia employers beginning July 1, 2000. They are:

1. Employer can't penalize an employee for going to court. Job protections provided an employee for a court appearance or for jury service now extend to any court ordered appearances in any court whatsoever. The bill also increases the penalty against an employer who violates this section from a Class IV to a Class III misdemeanor, which is a fine of not more than $500.00.
2. Immunity for disclosing employment information in references. Any employer, who, upon request by a person's prospective or current employer, provides information about that person's professional conduct, reasons for separation or job performance, including information contained in any written performance evaluations, shall now be immune from civil liability, provided that the employer is not acting in bad faith or in reckless disregard of whether the information is false. Punitive damages may be awarded if the employer acts in bad faith.

Kurt J. Pomrenke

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Kurt J. Pomrenke, with Steven R. Minor and Eric W. Reecher on brief, was victorious before the Supreme Court of Virginia in Russell County Department of Social Services v. O'Quinn, 259 Va. 139, 523 S.E.2d 492 (2000). Virginia's high Court agreed with Mr. Minor that absent a statutory or contractual provision to the contrary, prevailing litigants in Virginia are not entitled to an award of attorneys' fees. Specifically, the Court held that the "further relief" language contained in the Virginia Declaratory Judgment Act did not provide the necessary statutory authority for an award of attorneys' fees.

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