906 S.E.2d 128
Va. Ct. App.2024Background
- Kelly Leigh Harris was the house director for the Zeta Deuteron chapter of Phi Gamma Delta (PGD) fraternity at Washington & Lee University (W&L), employed by PGD's House Corporation, not W&L.
- Harris reported alleged COVID-19 policy violations to W&L officials and was later suspected by W&L staff of contacting the media about such violations.
- Harris's at-will employment was terminated by House Corporation, not W&L, following these events.
- Harris received severance via a Separation and Release Agreement with House Corporation, waiving claims against them but not W&L.
- Harris sued W&L under the Virginia Whistleblower Protection Law (VWPL), claiming retaliation but no direct payment or employment relationship with W&L existed.
- The circuit court dismissed her claims, finding she was not a W&L employee under the statutory definition; Harris appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of "employee" under VWPL | Code § 40.1-2 allows multiple employers for one employee | Statute requires direct payment; Harris was not paid | Statute permits multiple employers, but direct payment is required |
| Whether Harris was a W&L employee (joint or borrowed employee) | W&L was a joint employer due to control and direction | W&L never paid, hired, or supervised Harris | Harris not an employee of W&L; lacked wage/salary/payment from W&L |
| Applicability of Butler v. Drive Auto Industries (Fourth Circuit) | Butler factors show joint-employment status | Virginia law follows the borrowed employee doctrine | Virginia follows the borrowed employee doctrine, not Butler |
| Existence of factual dispute requiring jury | Disputed facts on employment relationship | Pure legal issue; no material factual dispute | No factual dispute exists; plea in bar proper |
Key Cases Cited
- Cornell v. Benedict, 301 Va. 342 (Va. 2022) (defines limitations on the scope of an "employer" under Virginia wage statutes)
- Massenburg v. City of Petersburg, 298 Va. 212 (Va. 2019) (ore tenus factual findings standard; appellate review deference)
- Metro Machine Corp. v. Mizenko, 244 Va. 78 (Va. 1992) (explains the borrowed employee doctrine under Virginia law)
- Ideal Steam Laundry v. Williams, 153 Va. 176 (Va. 1929) (clarifies common law borrowed employee relationships)