A New Employment Law Cause of Action? - COTW #133

The Case of the Week comes to us from Virginia. I don't usually cover out-of-state law, but this case essentially recognizes a new theory of liability (at least I've never heard of it before) that allows employees to sue individuals, instead of their LLC-employer, for wrongful termination.

The case is VanBuren v. Grubb, 733 S.E.2d 919 (Va. 2012). The employee was a nurse at an orthopedic center (an LLC) that was owned by a surgeon. The surgeon allegedly made unwelcome sexual advances, including hugging, kissing, and rubbing. The nurse rejected these advances and the surgeon terminated her.

Sounds like your average sexual harassment claim, right? That's where this takes a weird turn - she files suit based in part on wrongful termination in violation of public policy. Here, the policy was state law forbidding adultery and lewd and lascivious conduct. The Court agrees that her claim constitutes an exception to the employment at will doctrine and she can bring a wrongful termination claim.

But wait . . . there's more! The Court holds that the individual surgeon can be held personally liable!

The purpose of the wrongful discharge tort—namely, the deterrence of discharge in violation of public policy—is best served if individual employees in a position of power are held personally liable for their tortious conduct. Employer-only liability would be insufficient to deter wrongful discharges, as this case clearly demonstrates.

So much for that LLC! If you're not familiar with LLCs, let's just say the "LL" stands for "limited liability" - apparently not-so-limited in Virginia.

HT: My McQuaide Blasko colleague Janine Gismondi who called my attention to an article in the March 2013 LJN Employment Law Strategist on this case (subscription req'd).