COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and Fulton

Argued at Lexington, Virginia

KELLY LEIGH HARRIS

OPINION BY

v. Record No. 1083-23-3 JUDGE CLIFFORD L. ATHEY, JR.

OCTOBER 1, 2024

WASHINGTON & LEE UNIVERSITY

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY

Christopher B. Russell, Judge

Thomas E. Strelka (L. Leigh Rhoads; Brittany M. Haddox; 

Monica L. Mroz; Strelka Employment Law, on brief), for appellant.

Tracy Taylor Hague (Anne Graham Bibeau; Elaine D. McCafferty;

Woods Rodgers Vandeventer Black PLC; Woods Rogers PLC, on 

brief), for appellee.

On June 7, 2023, the Circuit Court of Rockbridge County (“circuit court”) sustained a plea 

in bar dismissing wrongful termination claims made by Kelly Leigh Harris (“Harris”) against 

Washington & Lee University (“W&L”) under the Virginia Whistleblower Protection Law 

(“VWPL”), Code § 40.1-27.3. Harris assigns error to the circuit court: 1) for determining, based 

upon the VWPL and “undisputed evidence,” that Harris was not an employee of W&L; 2) for 

misinterpreting the terms “employer” and “employee” in Code § 40.1-2; 3) for determining that 

Harris could not have reported any alleged violations to a supervisor “as she did not have a 

supervisor at [W&L]”; 4) for holding that W&L’s plea in bar did not “involve[] . . . disputed factual 

issue[s]” based upon the factors enunciated in Butler v. Drive Auto Industries of America, 793 F.3d 

404 (4th Cir. 2015); and 5) for failing to rule on “whether [she] reported any alleged violations of 

any federal or state law or regulation as required by [the VWPL].” Finding no error, we affirm the 

circuit court’s judgment.

PUBLISHED
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I. BACKGROUND1

On June 1, 2015, Harris began her employment as the house director for the Zeta 

Deuteron chapter of the Phi Gamma Delta (“PGD”) fraternity located on the campus of W&L. 

Harris had previously applied for the position of house director by sending her employment 

application to Mark Muchmore (“Muchmore”), the President of PGD’s House Corporation.

Muchmore subsequently interviewed Harris and offered her the position as house director that

she accepted. Before Harris commenced her employment, both she and Muchmore executed an

Employment Agreement (“Agreement”), which contained the terms and conditions of her 

employment with House Corporation. 

W&L owned the PGD fraternity house. As a consequence of the terms in its lease of the 

fraternity house to PGD, W&L required PGD to comply with W&L’s policies. W&L’s policies 

required all Panhellenic organizations to employ and maintain house directors during the school 

year. However, W&L was neither a party nor signatory on the Agreement between House 

Corporation and Harris, and W&L did not participate in either Harris’s job interview or in the

hiring decision.2 

The terms of the Agreement also made clear that Harris’s employment was “at[-]will”

and that she was to receive a monthly paycheck from House Corporation consistent with the 

1 As the circuit court held an evidentiary hearing on W&L’s plea in bar, “[a]ccording to 

well settled principles, we recite the relevant facts in the light most favorable to [W&L], . . . the 

prevailing party in the circuit court.” Nichols Constr. Corp. v. Va. Mach. Tool Co., LLC, 276 

Va. 81, 84 (2008). To note, some pleadings and parts of the record in this matter were filed 

under seal. Hence, “this appeal requires unsealing certain portions to resolve the issues raised by 

the parties. [Thus,] [t]o the extent that certain facts mentioned in this opinion are found in the 

sealed portions of the record, we unseal only those portions.” Chaphe v. Skeens, 80 Va. App. 

556, 559 n.2 (2024) (quoting Mintbrook Devs., LLC v. Groundscapes, LLC, 76 Va. App. 279, 

283 n.1 (2022)).

2 Harris cites to several parts of the record she alleges support her assertion that W&L 

participated in her hiring decision. However, after reviewing her citations, we find that they do 

not support her assertion.
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salary outlined in the Agreement. In addition, pursuant to terms of the Agreement, Harris was: 

1) to receive a stipend from House Corporation to assist her in purchasing her own health

insurance; 2) given permission to seek reimbursement from House Corporation when Harris 

incurred personal expenses on behalf of PGD in her role as house director; and 3) to live in a 

cottage located on the grounds of the PGD fraternity house. The cottage was also owned by 

W&L and leased to PGD. The Agreement also required House Corporation to cover the utility 

and other miscellaneous costs necessary for Harris to occupy the cottage. But W&L was neither 

a payor of Harris’s salary, nor did W&L pay for her health insurance stipend, nor did W&L 

provide her a W-2 form for tax purposes. 

The Agreement generally charged Harris, as house director, with being “responsible to 

the house corporation for managing the day-to-day affairs of the chapter house,” which included 

caring for the house, arranging for repairs, and “mak[ing] sure the boys complied with all of the 

rules of [W&L].” The House Corporation maintained supervisory authority over the house 

directors,3but Harris was required to communicate with “liaison[s]” at W&L regarding issues 

pertinent to the fraternity or to maintaining its house. 

During her employment as house director, Harris was a self-described “squeaky wheel,”

taking issue with students for failing to comply with PGD’s requirements. In March of 2020, 

W&L circulated guidelines to help mitigate the deleterious effects of the COVID-19 pandemic. 

The guidelines tasked house directors with reporting guideline violations to Chris Reid (“Reid”),

W&L’s Director of Resident Life. Harris subsequently reported to Reid that students had 

returned to fraternity housing seven days before W&L had begun testing for COVID-19, that

3 Harris also testified in her deposition that she drafted rules and guidelines for the Zeta 

Deuteron chapter that “compli[ed] with the [W&L] guidelines as well as [PGD] International 

Laws,” one of which stated that the “house director is an employee of the [H]ouse 

[C]orporation.” 
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some PGD members and visitors were not masking and socially distancing while at the PGD

fraternity house, and that the fraternity house’s services were not in compliance with W&L’s

COVID-19 policies. As a result of the reported violations, Reid coordinated with House 

Corporation to address Harris’s various violation reports. However, Reid did not reprimand the

reported students as requested by Harris. 

The week of January 21, 2021, a local newspaper reported receiving an anonymous 

report from an unnamed house director that W&L was not testing students for COVID-19 before 

allowing them to return to fraternity housing. A reporter from the newspaper had contacted 

W&L for comment on January 21, 2021, and the request for comment was then forwarded to

W&L’s Dean of Student Life, David Leonard (“Leonard”). Leonard advised in an email chain to 

other W&L staff members that he had “[n]o doubt this is from . . . Harris at [PGD].” Leonard 

also advised in the email chain that he was going to have Reid “reach out” to Harris to “discuss 

the concern and her poor judgement in [supposedly] contacting the paper.” He further noted that

he had discussed with Muchmore PGD “cut[ting] her loose.” 

The following week, on January 28, 2021, Harris’s frustrations with W&L’s failure to 

discipline certain members of the PGD fraternity finally boiled over. She emailed Reid

demanding that he reprimand certain students whom she had previously reported for violations 

of the COVID-19 policy. She also accused Reid and W&L of ignoring her previous complaints 

of COVID-19 related violations. She further accused W&L of violating executive orders issued 

by the Governor of Virginia related to the COVID-19 pandemic. Finally, she criticized Reid’s 

previous responses to her concerns, stating that they were insufficient to address the issues. Her 

email exchange with Reid was copied to various officials at W&L. Reid responded by rebuking 

Harris for sending a “highly inappropriate email” and for “cop[ying] everyone on [it].” Reid also 
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warned Harris that he would “be addressing this with M[uchmore] and others in Student Affairs” 

in the near future. 

That same day, Leonard contacted Muchmore concerning his suspicion that Harris was 

the anonymous house director who had contacted the local reporter. He also forwarded the email 

sent by Harris to Reid and copied to numerous W&L employees. Leonard further advised 

Muchmore that in his opinion, Harris “[h]a[d] lost the respect of the majority of those of us 

working for [W&L].” He suggested that Harris’s conduct should be addressed by “directly 

confronting her behavior from here on out.” Muchmore forwarded Leonard’s email to House 

Corporation’s treasurer commenting: “I think this is it. We’ve talked to her multiple times about 

this kind of communication. She may not be wrong about her frustrations, but her tone and 

approach keep creating an issue with [W&L].” Muchmore also emailed Harris that he had 

“heard from multiple people” and that he and Harris “need[ed] to discuss this tonight.” 

Muchmore then called Harris on January 30, 2021, and terminated her at-will employment as 

PGD’s house director. 

Following her termination, Harris signed a Separation and Release Agreement

(“Separation and Release”) with House Corporation. Pursuant to the terms of the Separation and 

Release, she received six months of severance pay, six months of supplemental payments to 

cover her health insurance costs, and $1,000 for moving expenses. In exchange, she agreed not

to bring any suit, including but not limited to a suit for wrongful termination against House

Corporation or its employees. W&L was not a party nor a signatory regarding the Separation 

and Release. 

On January 24, 2022, Harris filed a complaint against W&L asserting that it had violated 

the VWPL by retaliating against her for reporting alleged violations of its COVID-19 policies 

that resulted in the termination of her employment by House Corporation. W&L responded to 
- 6 -

Harris’s complaint by filing a demurrer and an answer on March 10, 2022. Harris and W&L 

subsequently conducted discovery, including depositions of Harris, Muchmore, Reid, and 

Leonard.

4

 

During her deposition, Harris asserted that “[W&L] expect[ed] House Corporation to 

provide a substitute house director if the regular house director was going to be away from the 

house for more than one night,” impeding her ability to leave the cottage for more than one 

night. Harris further stated that she thought Reid, a W&L employee, was her “go-to person” 

because “he was over the house directors, and we were to send things to him about the students.” 

She also contended that W&L had told house directors that they were “supposed to report 

violations of rules or guidelines” to Reid. When asked what “entities” she considered to be her 

employer, she considered PGD one of her employers because she “got [her] paychecks from 

[PGD].” Although Harris also considered W&L to be her employer because “[she] had to follow 

their rules and regulations,” she conceded multiple times during her deposition that she was not 

an “employee” of W&L. Harris also admitted that her actual employer was House Corporation

and that Muchmore, who was not a W&L employee, was her supervisor. She further admitted 

that W&L did not have any input in whether she was hired for the position of house director. 

Harris even acknowledged that when she applied for unemployment benefits, she “listed [her]

employer as being [House Corporation].” 

During his deposition, Muchmore contended that W&L’s lease of the PGD fraternity 

house to House Corporation required PGD to hire a house director “in specific language in the 

lease with [W&L].” He also acknowledged that a “key component” of the house director 

position was to “regularly communicate with people at W&L.” However, Muchmore explained

4 Some of these depositions are partially included in the record before this Court. These 

same depositions or partial depositions were also marked as exhibits and introduced as evidence 

before the circuit court at the evidentiary hearing. 
- 7 -

that, even though W&L required fraternities to hire house directors, those directors did not work 

for W&L. Finally, Muchmore contended that Harris performed her duties as house director at 

the direction of House Corporation, reported to him as her supervisor, and was terminated by 

him without W&L’s input. 

Similarly, both Reid and Leonard confirmed the nature of the relationship between house 

directors and W&L. For example, Leonard specifically stated that W&L does not “provide any 

oversight of house directors,” and house directors are not required to “report to” W&L officials. 

Leonard also stated that he was unaware of how these house directors were hired and unsure if 

W&L reviewed application materials submitted for the positions. Although Reid confirmed 

Leonard’s impression of the relationship between W&L and house directors, he did acknowledge 

that Harris had reported “university [COVID-19] policy violations” to him previously and that 

she had done so at the time of the emails in question. 

On March 20, 2023, W&L filed a plea in bar asserting that Harris’s claim was barred 

because her suit fell outside of the ambit of the VWPL for three reasons: 1) she was not a W&L

employee; 2) the VWPL only protects employees reporting violations of a federal or state law or 

regulation, not violations of school policy; and 3) she could not have reported any alleged 

violations of a federal or state law or regulation to her supervisor at W&L since she was not an

employee of W&L and thus had no W&L supervisor. Harris moved to strike W&L’s plea in bar

on March 24, 2023. Harris also demanded the empaneling of a jury to consider and resolve the 

issues raised in W&L’s plea in bar. W&L responded by moving to strike Harris’s jury demand, 

asserting that the plea in bar addressed solely a matter of law. Harris opposed W&L’s motion to 

strike the jury demand, contending that a factual dispute existed concerning whether W&L and 

PGD were her joint employers consistent with the holding in Butler v. Drive Automotive 

Industries of America, Inc., 793 F.3d 404 (4th Cir. 2015). Following the April 5, 2023 motions 
- 8 -

hearing, the circuit court issued a letter opinion striking the jury demand after finding that no

disputed facts existed based upon the meaning of “employee” in the VWPL. 

The parties subsequently filed briefs in support of and in opposition to the plea in bar. 

W&L contended that, because Harris failed to provide any evidence that she received any wages, 

salaries, or commissions from W&L, she lacked standing as a whistleblower employee pursuant 

to the VWPL. Harris opposed the plea in bar, asserting that W&L was Harris’s “joint employer” 

consistent with the holding in Butler and thus that she possessed standing to bring suit as a 

statutorily protected whistleblower. 

After hearing argument on May 4, 2023, the circuit court deliberated and then 

pronounced its decision from the bench,5 which was later summarized into its final written order. 

The circuit court found, “[a]fter reviewing the briefs, weighing the evidence presented by the 

parties, and hearing argument of counsel, the Court finds, based upon the undisputed evidence, 

that [Harris] was not an employee of Washington and Lee University as that term is defined in 

within V[irgina]Code § 40.1-2.” Further, as a result of this holding, the circuit found that 

“[Harris] did not report any alleged violations to a supervisor at Washington and Lee University 

[under the VWPL] as she did not have a supervisor at Washington and Lee University.” As a 

result, the circuit court sustained W&L’s plea in bar. Subsequently, the circuit court entered a 

final order dismissing the case with prejudice. Harris appealed. 

5 Note, Harris filed a partial transcript with only the judge’s ruling from the May 4, 2023 

hearing. But as she filed it on September 14, 2023, it was filed late and therefore, is not part of 

the record. See Rule 5A:8(a).
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II. ANALYSIS

A. Standard of Review

Where the “parties presented evidence on the plea ore tenus, the circuit court’s factual 

findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they 

are plainly wrong or without evidentiary support.” Massenburg v. City of Petersburg, 298 Va. 

212, 216 (2019) (quoting Hawthorne v. VanMarter, 279 Va. 566, 577 (2010)).

6

 We review 

“pure legal questions, including questions of statutory construction” underpinning the circuit 

court’s judgment de novo. Id.

B. Although Code § 40.1-2 contemplates the existence of a shared employment 

 arrangement, the statute’s text and the evidence before the circuit court support 

 its finding that Harris was not an employee shared with W&L.

Harris assigns error to the circuit court for sustaining the plea in bar against her claims. 

She asserts that the circuit court erred because: 1) the definitions of “employer” and “employee” 

within Code § 40.1-2 “do not foreclose the possibility” of W&L being found to be her employer; 

2) the holding in Butler v. Drive Auto Industries of America, Inc., 793 F.3d 404 (4th Cir. 2015), 

applies to her claim under Virginia law; 3) her complaint had “involved disputed factual 

issue[s]” regarding whether she was an employee of W&L who had a supervisor at W&L; and 4)

the circuit court declined to rule on “whether [Harris] reported any alleged violations of any 

6 To note, the parties are correct that the Supreme Court has not determined the standard 

of review applicable to the grant or denial of a motion to strike a jury demand. See, e.g., Bethel 

Inv. Co. v. City of Hampton, 272 Va. 765, 770 (2006) (holding the right to trial by jury, when 

properly invoked, applies to pleas in bar involving issues of disputed fact, without expressing the 

standard of review). But we find that the “plainly wrong or without evidentiary support” 

standard of review subsumes the portion of Harris’s assignment of error that avers the circuit 

court erred by denying her demand to have a jury empaneled to resolve any factual disputes at 

the plea hearing because the circuit court heard evidence ore tenus. Upper Occoquan Sewage 

Auth. v. Blake Constr. Co., 266 Va. 582, 591 (2003) (finding that jury findings made on a factual 

issue raised at the plea in bar stage may only be reversed if they are “plainly wrong or without 

evidentiary support”). Thus, we decline to opine further on the specific standard of review for 

denials of jury demands for pleas in bar.
- 10 -

federal or state law or regulation as required by [the VWPL].” We agree in part and disagree in 

part.

1. The plain language of the “employer” and “employee” definitions within Code

 § 40.1-2 contemplates that an employee could have more than one employer.

As a threshold matter, Harris asserts that the text of the definitions of “employer” and 

“employee” within Code § 40.1-2 are broad enough to encompass employment relationships 

where an employee has more than one employer. W&L counters by contending that the plain 

language of the definitions as well as the Supreme Court of Virginia’s holding in Cornell v. 

Benedict, 301 Va. 342 (2022), bars Harris’s interpretation of the statute. We agree with Harris.

To resolve this assignment of error, we must interpret the text of the definitions for 

“employer” and “employee” contained within Code § 40.1-2 to determine whether the 

definitions would permit the statute’s application to employment relationships involving more 

than one employer employing a single employee. “In interpreting [a] statute, ‘courts apply the 

plain meaning . . . unless the terms are ambiguous or applying the plain language would lead to 

an absurd result.’” Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 292 Va. 537, 541 (2016) 

(quoting Baker v. Commonwealth, 284 Va. 572, 576 (2012)). 

[A] statute is ambiguous when its language is capable of more 

senses than one, difficult to comprehend or distinguish, of doubtful 

import, of doubtful or uncertain nature, of doubtful purport, open 

to various interpretations, or wanting clearness of definiteness, 

particularly where its words have either no definite sense or else a 

double one. 

Shepherd v. Conde, 293 Va. 274, 284 (2017) (quoting Newberry Station Homeowners Ass’n v. 

Bd. of Supervisors of Fairfax Cnty., 285 Va. 604, 614 (2013)). But where “the language of a 

statute is unambiguous, we are bound by the plain meaning of that language.” Nalls v. 

Commonwealth, 79 Va. App. 712, 718 (2024) (quoting Cuccinelli v. Rector & Visitors of the 

Univ. of Va., 283 Va. 420, 425 (2012)). As such, “[t]he plain, obvious, and rational meaning of a 
- 11 -

statute is to be preferred over any curious, narrow, or strained construction.” Stanton v. Va. 

Beach - Fire Operations, 79 Va. App. 587, 592 (2024) (quoting Ford Motor Co. v. Gordon, 281 

Va. 543, 549 (2011)).

In addition, where possible, “[w]e ordinarily resist a construction of a statute that would 

render part of a statute superfluous.” Loch Levan Land Ltd. P’ship v. Bd. of Supervisors of 

Henrico Cnty., 297 Va. 674, 685 (2019) (quoting Davis v. MKR Dev., LLC, 295 Va. 488, 494 

(2018)). And “we have a duty, whenever possible, ‘to interpret the several parts of a statute as a 

consistent and harmonious whole so as to effectuate the legislative goal.’” Stanton, 79 Va. App. 

at 592 (quoting Oraee v. Breeding, 270 Va. 488, 498 (2005)). A corollary to this rule “is that 

when a term is used in different sections of a statute, we give it the same meaning in each 

instance unless there is a clear indication the General Assembly intended a different meaning.” 

Eberhardt v. Fairfax Cnty. Emps. Ret. Sys. Bd. of Trs., 283 Va. 190, 195 (2012). These 

interpretive rules are in accordance with the time-honored principle that we “presume that the 

legislature chose, with care, the words it used when it enacted the relevant statute.” Cornell, 301 

Va. at 349 (quoting Tvardek v. Powhatan Vill. Homeowners Ass’n, Inc., 291 Va. 269, 277 

(2016)).

Under the VWLP, “[a]n employer shall not discharge, discipline, threaten, discriminate 

against, or penalize an employee, or take other retaliatory action . . . , because the employee . . . 

in good faith reports a violation of any federal or state law or regulation.” Code 

§ 40.1-27.3(A)(1); Rivera v. Mantech Int’l Corp., 81 Va. App. 170, 175 (2024) (quoting Code 

§ 40.1-27.3(A)(1)). 
- 12 -

Code § 40.1-2 further defines, for purposes of this statute, the terms “[e]mployer” and 

“[e]mployee,”

7

as follows:

“[e]mployer” means an individual, partnership, association, 

corporation, legal representative, receiver, trustee, or trustee in 

bankruptcy doing business in or operating within this 

Commonwealth who employs another to work for wages, salaries, 

or on commission and shall include any similar entity acting 

directly or indirectly in the interest of an employer in relation to an 

employee.

(Emphases added). It also provides that “‘[e]mployee’ means any person who, in consideration 

of wages, salaries or commissions, may be permitted, required or directed by any employer to 

engage in any employment directly or indirectly.” Id. (emphases added). We have “previously 

held that ‘wages,’ is a term applied to compensation paid to an employee as consideration for 

work, which constitutes a real economic gain to the employee.” Key Risk Ins. Co. v. Crews, 60 

Va. App. 335, 347 (2012). In addition, “‘salary’ is generally defined as ‘a fixed annual or 

periodical payment for services, depending upon the time and not upon the amount of services 

rendered.’” Home Beneficial Life Ins. Co. v. Unemployment Comp. Comm’n, 181 Va. 811, 821 

(1943). And “‘[c]ommissions,’ when ‘used to express compensation for services rendered,’ 

usually denotes ‘a percentage on the amount of moneys paid out or received.’” Id. at 820 

(quoting Purifoy v. Godfrey, 16 So. 701, 703 (Ala. 1894)). 

Also, for purposes of interpreting a statute, the term “shall” may be read as “mandatory 

or directory—depend[ing] entirely on the legislature’s intended meaning as discerned from ‘the 

nature, context, and purpose’ of the relevant statute.” Bland-Henderson v. Commonwealth, 303 

Va. 212, 219 (2024) (quoting Huffman v. Kite, 198 Va. 196, 202 (1956)). We further find that 

7 The definitions within Code § 40.1-2 first appeared in 1962, in Chapter 66 of the Acts 

of Assembly, Senate Bill 61 as Code § 40-1.1. In passing this bill, the General Assembly 

provided that this section was “recommended in order to define terms used throughout Title 40 

to avoid repetition of complete definitions.” Senate Report Doc. No. 9, Revision of Certain 

Labor Laws contained in Chapters 1, 2 and 3 of Title 40 of the Code of Virginia, 6 ¶ 2 (1962). 
- 13 -

“the use of the disjunctive word ‘or,’ rather than the conjunctive ‘and,’ signifies the availability 

of alternative choices.” Williams v. Commonwealth, 61 Va. App. 1, 8 (2012) (quoting Rose v. 

Commonwealth, 53 Va. App. 505, 514 (2009)). Also, “‘[a]ny’ is defined, in part, as ‘one or 

some indiscriminately of whatever kind’; ‘one or more indiscriminately from all those of a kind’; 

or ‘one that is selected without restriction or limitation of choice.’” Botkin v. Commonwealth, 

296 Va. 309, 314 (2018) (quoting Any, Webster’s Third New Int’l Dictionary (2002)). 

Finally, “[t]he maxim of noscitur a sociis provides that the meaning of doubtful words in 

a statute may be determined by reference to their association with related words and phrases.” 

Cuccinelli, 283 Va. at 432 (quoting Andrews v. Ring, 266 Va. 311, 319 (2003)). Thus, “[w]hen 

general words and specific words are grouped together, the general words are limited and 

qualified by the specific words and will be construed to embrace only objects similar in nature to 

those objects identified by the specific words.” Id.

Turning to the interpretation of the term “employer” within Code § 40.1-2, the Supreme 

Court of Virginia held in in Cornell, that the plain language contained within the definition 

precluded individuals from joint liability under Virginia’s unpaid wages statute because the term 

omitted the word “person,” creating a narrower definition than the one provided for in the 

Federal Fair Labor Standards Act (“FLSA”),

8 which provided for such joint liability. 301 Va. at 

351.

Here, by analyzing the plain text of the definitions for the term “employer” and 

“employee” in Code § 40.1-2, we find that the General Assembly intended for the terms to

encompass at least some of those relationships between an employee with more than one

employer. To begin, the definition of “[e]mployer” “shall include any similar entity acting 

8 The FLSA provided for joint liability against individual non-entity employers. See 

Cornell, 301 Va. at 349.
- 14 -

directly or indirectly in the interest of an employer in relation to an employee.” Code § 40.1-2

(emphasis added). In examining this statutory scheme’s “nature, context, and purpose” we note 

that the General Assembly’s use of the term “shall” in the employer definition is evocative of a 

“mandatory” command, explicitly requiring that such an entity be included in the ambit of the 

statute. Bland-Henderson, 303 Va. at 219 (quoting Huffman, 198 Va. at 202). Hence, from this

command, we find that the General Assembly mandated that such “similar entit[ies] acting 

directly or indirectly in the interest of an employer in relation to an employee” fall within the 

definition. Code § 40.1-2. The fact that this term encompasses more than a single employer is 

further supported by the definition of “employee.” Id. The General Assembly provides in Code 

§ 40.1-2 that “[e]mployee[s]” are “any person who, in consideration of wages, salaries or 

commissions, may be permitted, required or directed by any employer to engage in any 

employment directly or indirectly.” (Emphases added). By choosing the term “any” to modify

“employer” the text permits the possibility that an employee may be “employ[ed]” by more than 

one employer, as it provides no limiting qualifier such as “their” or “the.” See Botkin, 296 Va. at 

314-15. Also, in the “employer” definition, the General Assembly qualifies that the “similar 

entity” encompassed by the term is to “act[] directly or indirectly in the interest of an employer 

in relation to an employee,” which is language evocative of requiring it to either owe a duty to 

the principal entity or to maintain some form of privity with it. See, e.g., Race Fork Coal Co. v. 

Turner, 237 Va. 639, 643 (1989) (“We have said that ‘[w]hile privity generally involves a party 

so identical in interest with another that he represents the same legal right, a determination of 

just who are privies requires a careful examination into the circumstances of each case.’” 

(quoting Nero v. Ferris, 222 Va. 807, 813 (1981))); Burruss v. Green Auction & Realty Co., 228 

Va. 6, 10-11 (1984) (“Joint venturers, like partners, have the dual status of principals for 

themselves and agents for all other joint venturers, within the scope of the enterprise. Each has a 
- 15 -

high degree of fiduciary duty toward the others arising out of the confidential relationship 

between them.” (emphasis added) (internal citations omitted)). Hence, from the meaning of the

plain text alone, we find that the General Assembly explicitly provided that an employee may 

have more than one employer and that this second employer must owe a duty or have privity 

with the principal employer. 

Continuing to parse the text of the “employer” definition, we find three qualifications that 

apply to “similar entit[ies]” who may be additional employers of an employee. Code § 40.1-2. 

First, by using the term “similar,” the General Assembly evokes “[t]he maxim of noscitur a 

sociis,” providing that the meaning of said term “may be determined by reference to their 

association with related words and phrases” contained within the “employer” and “employee” 

definitions. Cuccinelli, 283 Va. at 432. Applying this maxim, Code § 40.1-2 requires that such 

entity be one of the types of entities already listed in the definition. The maxim also requires that 

this entity “employ” 9the employee and pay them “wages, salaries, or on commission.” Code 

§ 40.1-2. To interpret this requirement otherwise would be to render the General Assembly’s use 

of the qualifier “wages, salaries, or on commission” in both definitions a surplusage, a result we

endeavor to avoid. See Loch Levan, 297 Va. at 685. 

Hence, extrapolating from the plain language within Code § 40.1-2, we hold that the

plain meaning of the terms “employer” and “employee” permit employees to have more than one 

employer in certain cases where the second employer is a “similar entity” to the first employer. 

Code § 40.1-2. We further hold that in order for the employers to be “similar entit[ies],” the 

employing entities must be: 1) the same types of entities as those already expressly provided for 

in the “employer” definition; 2) an employer which “employ[s]” the employee in question in 

9 Code § 40.1-2 defines “employ,” as to “permit or suffer to work,” which indicates that 

this entity must have control over the continuation of the relationship.
- 16 -

exchange for “wages, salaries, or . . . commission”; and 3) an employer/entity that owes some 

duty or has some form of privity with the principal employer/entity. Id. 

In addition, although we find that much of the definition of employer in the statute is 

unambiguous, we acknowledge that the term “similar entity” in the “employer” definition in 

Code § 40.1-2 is relationally ambiguous. Beyond the specifics of what type of entities are a 

“similar entity” and what an entity must do to qualify as an “employer” under the statute, very 

little with respect to its application can be derived from the term itself. Id. As Harris contends 

on brief, the term provides no indication of whether and to what extent the employer controls the 

employee’s tasks, whether the similar entity possesses the power to hire or terminate the

employee, the time the employee spent in the particular role, the employee’s duties in their 

position, and other general characteristics of employment that generally may be considered in 

making the determination of whether an employer-employee relationship exists. Hence, the term

“lacks clearness and definiteness” in relation to the evidence that is relevant to determining what

constitutes a similar entity. Lee-Warren v. School Bd. of Cumberland Cnty., 241 Va. 442, 445

(1991). Thus, we are required to interpret the term “similar entity” in light of its context within 

the statute because we are tasked with determining if Harris alleges facts sufficient to show that 

W&L could also have been her “employer.”10 Code § 40.1-2.

10 We also note that W&L’s argument to the contrary, that Cornell v. Benedict forecloses 

such employment relationships, is unavailing. 301 Va. at 351. The question before the Supreme 

Court of Virginia in Cornell was whether individuals in their personal capacity could be held 

jointly liable with their employing entity. Id. at 349. The Cornell Court held that, because the 

preceding list of entities contained within the Code § 40.1-2 “employer” definition neglected to 

include “person,” the definition itself precluded personal liability. Id. at 351. That holding has 

no bearing on the question before this Court today: whether or not the employer definition within 

Code § 40.1-2 permits liability against two different employers which are similar entities. 
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2. The circuit court did not err in analyzing the application of Butler v. Drive

 Automotive Industries of America, Inc. to this matter since the Virginia 

 common law borrowed employee doctrine controls in determining what is a

 similar entity in this case.

Harris next asserts that, because the definitions of “employer” and “employee” in Code 

§ 40.1-2 include an employee who may be employed by more than one employer, a factual 

dispute existed regarding whether or not Harris was also employed by W&L because she 

presented facts that met some of the factors required in Butler, 793 F.3d at 414, to establish a 

“joint-employment” arrangement. In support, Harris claims that Butler applies here because the 

Fourth Circuit’s reasoning in that case is “similar to many of the tests used to evaluate 

nonstandard employment relationships.” However, as she conceded at oral argument, Virginia 

has never adopted the reasoning in Butler. 

In order to resolve this assignment of error, we first note that the terms to be defined are 

terms of art related to Virginia’s common law tradition pertaining to nonstandard 

employer-employee arrangements. We further note that:

when a statute employs a common-law term of art, the General 

Assembly “is presumed to have known and to have had the 

common law in mind in the enactment of a statute.” Thus, we 

must “giv[e] effect to both ‘unless it clearly appears from express 

language or by necessary implication that the purpose of the statute 

was to change the common law.”’ 

Game Place, L.L.C. v. Fredericksburg 35, LLC, 295 Va. 396, 402 (2018) (quoting Jenkins v. 

Mehra, 281 Va. 37, 44 (2011)). “Abrogation of the common law thus occurs only when ‘the 

legislative intent to do so is plainly manifested,’ as ‘there is a presumption that no change was 

intended.’” Jenkins, 281 Va. at 44 (emphasis added) (quoting Isbell v. Com. Inv. Assocs., Inc., 

273 Va. 605, 613-14 (2007)).

In accordance with Supreme Court of Virginia precedent, we have “recognized that, at 

common law, an employee may be borrowed by one employer from another.” Liberty Mut. Ins. 
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Corp. v. Herndon, 59 Va. App. 544, 563 (2012). “Under the borrowed [or loaned] [employee]

doctrine, a worker, although directly employed by one entity, may be transferred to the service of 

another so that he becomes the employee of the second entity ‘with all the legal consequences of 

the new relation.’” Metro Machine Corp. v. Mizenko, 244 Va. 78, 82 (1992) (quoting Standard 

Oil v. Anderson, 212 U.S. 215, 220 (1909)). In these dual employment relationships, “it is 

generally understood that ‘the lending employer is known as the “general employer” and the 

borrowing employer, the “special employer.”’” Smith v. McMillan Pers. Serv., 48 Va. App. 208, 

217 (2006) (quoting 3 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation 

Law § 67.01[1], p. 67-2 (2001) (interpreting the Virginia Workers’ Compensation Act)). The 

general employer is the employer “who may have made the express contract of employment of 

the [employee] and may pay the [employee] his wages.” Ideal Steam Laundry v. Williams, 153 

Va. 176, 180 (1929). Whereas the employer now controlling the employee’s labor is the

employee’s “special employer.” See Va. Polytechnic & State Univ. v. Frye, 6 Va. App. 589, 592 

(1988). The employees in these types of employment arrangements are referred to as either 

“borrowed” or “loaned” employees. Metro Machine, 244 Va. at 83 (applying the doctrine 

equally to “loaned or borrowed [employees]” without delineating a difference between the 

terms).

11 We have previously applied the borrowed employee doctrine in statutory schemes 

regarding labor where the general terms “employer” and “employee” do not explicitly mention 

“special employers or [borrowed] employees” because the doctrine’s common law underpinnings 

relate to “resolv[ing] dual employer situations.” Frye, 6 Va. App. at 592; see, e.g., Ideal Steam 

Laundry, 153 Va. at 179-82 (concluding that although the Virginia Workers’ Compensation Act 

“is silent with reference to the status of a [borrowed] employee,” the common law governing

11 For consistency purposes, we use “borrowed employee” to describe the doctrine from 

here onward.
- 19 -

employers and employees applies to determine whether an individual was acting as an employee 

of another).

“To determine whether a party is a special employer, we examine four elements of the 

[employer-employee] relationship: (1) selection and hiring of the [employee]; (2) payment of his 

or her wages; (3) power of dismissal; and (4) power of control of the [employee’s] actions.” 

Frye, 6 Va. App. at 593 (quoting Smith v. Grenadier, 203 Va. 740, 746 (1962)). At common 

law, “control over the employee is the most important factor in consideration of the borrowed 

[employee] status, although it alone may not be dispositive.” Liberty Mut. Ins., 59 Va. App. at 

564. However, applying this doctrine, “an employee who is lent to a special employer . . . 

becomes the [employee] of the employer to whom he is lent’ only if the employee ‘assents to the 

change in employment.’” Smith, 48 Va. App. at 219 (quoting Ideal Steam Laundry, 153 Va. at 

181-82). “The employee’s assent may be shown by ‘explicit or implied consent to working for 

an employer other than [the general employer].’” Id. (quoting Marshall Erdman & Assocs. v. 

Loehr, 24 Va. App. 670, 677 (1997) (alteration in original)).

Hence, when interpreting the meaning of the term “similar entity” in Code § 40.1-2, we 

hold that the unabrogated common law “borrowed employee doctrine” governs our consideration 

of the meaning of the terms “employer” and “employee” as well as the mechanics of determining 

whether employers are “similar entities.” As we previously held, the definitions of “employer” 

and “employee” within Code § 40.1-2 permit employment arrangements where an employee has 

more than one employer. We also found that pursuant to the statute, the employers in such an 

arrangement must be “similar entities.” Thus, since Code § 40.1-2 does not provide an 

unambiguous definition of “similar entity,” the meaning of that term is ambiguous. In analyzing 

such ambiguity, we must presume that the General Assembly knew the common law and had it 

in mind when enacting Code § 40.1-2, see Game Place, 295 Va. at 402, and we must “giv[e] 
- 20 -

effect to [to that understanding] ‘unless it clearly appears from express language or by necessary 

implication that the purpose of the statute was to change the common law,’” Jenkins, 281 Va. at 

44. Therefore, based on the text of the definition of “employer” in Code § 40.1-2, we find that 

the General Assembly imported the long-adopted borrowed employee doctrine to guide our 

courts in determining whether employers are “similar entities.” We reach this conclusion, in 

part, because this Court has previously applied the borrowed employee doctrine at common law 

to other statutory schemes involving employment to “resolve dual employer situations” like the 

relationship alleged by Harris here. Frye, 6 Va. App. at 592. 

However, since Code § 40.1-2 clearly requires that an employer must pay and an 

employee must work for “wages, salaries, or . . . commission,” we also find that the General 

Assembly conveyed its plain intention to amend the common law borrowed employee doctrine in 

the determination of whether an employer and employee qualify as such under the Act. See

Jenkins, 281 Va. at 44. Thus, we further find that the payment of such “wages, salaries, or . . .

commission,” by the alleged “special employer” and the receipt thereof are mandatory threshold 

conditions that the putative borrowed employee must satisfy in order to be within the statute’s 

protection.12 See Code § 40.1-2; Frye, 6 Va. App. at 592. The alleged borrowed employee may 

then show that an employment relationship existed through the evidence related to the other 

common law factors pertaining to which entity selected and hired the employee, which entity had 

the power to dismiss the employee, and which entity had the power to control the employee’s 

actions. Frye, 6 Va. App. at 593. It remains true that the borrowed employee in these cases must 

12 This conclusion from the provision’s explicit text is supported by the fact that “[e]ven 

at common law the existence of the relationship of [employer and employee] does not depend 

upon the payment of wages or a salary by a[n employer] direct to the [employee].” 

Unemployment Comp. Com. v. Harvey, 179 Va. 202, 215 (1942). By providing otherwise in the 

definitions of “employer” and “employee” in Code § 40.1-2, the General Assembly plainly 

evinced an intent to “[a]brogat[e] the common law rule,” Jenkins, 281 Va. at 44, which we must 

respect when interpreting the provision. 
- 21 -

explicitly or implicitly “assent[] to the change in employment.” Smith, 48 Va. App. at 219. In 

addition, “control over the employee is [an] . . . important factor in consideration of the borrowed 

[employee] status.” Liberty Mut. Ins., 59 Va. App. at 564. But, in light of the plain text of Code 

§ 40.1-2, payment and receipt of “wages, salaries, or . . . commission” is now the most important 

factor in determining whether or not an entity is a special employer.

By adopting the application of the borrowed employee doctrine, we decline to adopt the 

reasoning of Butler, as requested by Harris. “While this Court considers Fourth Circuit decisions 

as persuasive authority, such decisions are not binding precedent for the decisions of this Court.” 

Toghill v. Commonwealth, 289 Va. 220, 227 (2015). As persuasive authority, Butler provides 

some guidance concerning what evidence at a granular level is needed to support a finding that 

W&L is a “similar entity” for our purposes. But even Butler “note[d] that none of these factors 

are dispositive and that the common-law element of control remains the ‘principal guidepost’ in 

the analysis.” 793 F.3d at 414. Moreover, the definitions of “employer” and “employee” 

contained within Code § 40.1-2, “are [not] circular,” and we note that they largely mirror 

Virginia’s existing common law doctrine and are more expansive than the statutory scheme 

analyzed in Butler. Id. at 408. Hence, the Fourth Circuit in Butler admitted to the common 

law’s impact on this inquiry, and thus we find the common law framework of the borrowed

employee doctrine, long adopted and ingrained in Virginia law, to be “the principal guidepost,”

see Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 448 (2003), for deciding 

what a “similar entity” is under Code § 40.1-2. Therefore, the circuit court did not err in 

declining to apply Butler.
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C. The circuit court was not plainly wrong in finding that the facts in the record

 did not create a factual dispute regarding whether Harris was an employee of 

 W&L or had a supervisor at W&L.13

Finally, Harris assigns error to the circuit court for finding that W&L’s plea in bar did not 

“involve [a] disputed factual issu[e]” regarding whether her “allegations support[ed] a finding 

that she was [W&L’s] employee as that term is defined in § 40.1-2.” In light of our 

interpretation of Code § 40.1-2 and the facts adduced ore tenus at the prior evidentiary hearing, 

we disagree.14

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s 

recovery.” Cornell, 301 Va. at 349 (quoting Massenburg, 298 Va. at 216). “The party asserting 

a plea in bar bears the burden of proof on the issue presented.” Hawthorne, 279 Va. at 577. 

“Simply holding an evidentiary hearing does not convert all of the arguments for and against the 

13 Since we find that the circuit court was not plainly wrong in concluding that Harris was 

not an employee of W&L and thus did not have a supervisor at W&L, we decline to reach 

Harris’s last assignment of error alleging that the circuit court erred in failing to rule on “whether 

Plaintiff reported any alleged violations of any federal or state law or regulation as required by 

Va. Code [§] 40.1-27.3.” Also, as that argument was not ruled upon by the circuit court, “there 

is no ruling for [this Court] to review” and it is waived under Rule 5A:18. Williams v. 

Commonwealth, 57 Va. App. 341, 347 (2010) (quoting Fisher v. Commonwealth, 16 Va. App. 

447, 454 (1993)).

14 To note, the circuit court’s ruling below made the following findings: 1) that “[t]he 

case at bar is a claim under Code § 40.1-27.3, a statute contained within the same title and 

chapter as the claim in [Cornell, 301 Va. at 349]”; 2) “that for the purposes of this case, 

‘employee’ means any person who, in consideration of wages, salaries or commissions, may be 

permitted, required or directed by any employer to engage in any employment directly or 

indirectly”; and 3) that “[t]he parties do not appear to dispute that the plaintiff’s allegations in 

this case do not support a finding that she was the defendant’s employee as that term is defined 

in § 40.1-2.” We find none of these findings inconsistent with our reasoning here, but to the 

extent there is an inconsistency, we affirm the circuit court’s judgment “[u]nder the right-resultdifferent-reason principle.” Vandyke v. Commonwealth, 71 Va. App. 723, 731 (2020) (noting 

that under this principle “an appellate court ‘do[es] not hesitate, in a proper case, where the 

correct conclusion has been reached but [a different] reason [is] given, to sustain the result [on an 

alternative] ground’” (quoting Banks v. Commonwealth, 280 Va. 612, 617 (2010))). However, 

we also take no position on the possibility that a supervisor might not be an employee or agent of 

the employee’s employer and nothing in this opinion should be read to imply such. 
- 23 -

plea in bar into factual disputes.” Cal. Condo. Ass’n, 301 Va. at 23. Hence, “[a]n argument 

asserting a purely legal bar to the pleaded facts, assumed arguendo to be true, can be and should 

be decided in that manner—so, too, should a purely legal rejoinder to an argument offered in 

support of a plea in bar.” Id.

Here, viewing the evidence in the record in the light most favorable to W&L, the circuit 

court was not plainly wrong in concluding that Harris did not show that a factual dispute existed 

regarding her putative borrowed employment at W&L. The record before the circuit court 

showed that Harris was an “at will” employee of House Corporation and that House Corporation 

was the sole payor of her salary and the party responsible for her employment benefits. Harris 

failed to adduce any evidence that directly or indirectly established that W&L paid or owed her 

“wages, salaries, or . . . commission” for her work as PGD’s house director. In fact, the record 

reflected that W&L did not pay any part of Harris’s salary, that W&L did not cover any portion 

of her health insurance stipend, that W&L did not provide her a W-2 form for tax purposes, that 

W&L did not pay her severance, and that W&L was neither a signatory to Harris’s Agreement 

nor her Separation and Release. Also, contrary to Harris’s position at oral argument that “things 

of value,” such as “housing” or “utilities,” could constitute “wages, salaries, or commission,” we 

find this assertion rebutted by how this Court and the Supreme Court of Virginia have defined

the terms in question. See, e.g., Home Beneficial, 181 Va. at 820, 821 (quoting Purifoy, 16 So. at 

703); Key Risk, 60 Va. App. at 339; see also Eley v. Commonwealth, 70 Va. App. 158, 165 

(2019) (holding that “in ascertaining [the ordinary] meaning of terms we may consult “dictionary 

definitions and pertinent analysis in prior case law”). These facts together compel the conclusion

that W&L could not be deemed her special employer under Code § 40.1-2 since the evidence 

would neither directly nor indirectly permit an inference that W&L paid Harris any wages 
- 24 -

whatsoever. Thus, the circuit court was permitted to conclude from the evidence at the prior 

hearing that no factual disputes existed and was not plainly wrong for doing so.

15

The evidence introduced by Harris at the hearing does not impact our conclusion. Harris 

contends at length on brief that she alleged facts sufficient to show that W&L was her special 

employer. She claims that because W&L owned the house she was required to live in, required 

her to stay on the property unless she found someone to cover for her absence, provided her 

several policies she was compelled to enforce, required PGD to employ someone in her position, 

and required her to report violations of W&L’s policies to Reid, she proved that W&L had 

sufficient control over her employment to make her a “joint employee.” Applying these facts to 

our interpretation of the definition of “employee” above, we find these facts insufficient to create 

the factual dispute Harris contends, as they do not show directly or indirectly that W&L paid her 

“salary, wages, or commission” in exchange for performing her role as a house director. After

hearing the evidence and weighing the proffered facts, the circuit court did not find that it was 

reasonable to infer such payment relationship could exist. Cf. Stadter v. Siperko, 52 Va. App. 

81, 94 (2008) (“[I]t is well settled that issues of credibility and the weight of the evidence are 

within the unique province of the trier of fact.” (quoting Parish v. Spaulding, 26 Va. App. 566, 

575 (1998))). Thus, we cannot conclude from Harris’s proffer that the circuit court was plainly 

wrong in finding that Harris failed to show that she was an employee of W&L. Therefore, we 

affirm the circuit court’s judgment.

15 Thus, we decline to consider whether Harris pleaded sufficient facts to show whether 

she had a supervisor at W&L as we affirm on the grounds that she failed to show that she was an 

employee of W&L. Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (“As we have often 

said, ‘the doctrine of judicial restraint dictates that we decide cases “on the best and narrowest 

grounds available.”” (quoting Commonwealth v. White, 293 Va. 411, 419 (2017))). “The ‘best’ 

answer to a legal question is the one with which the least number of jurists would disagree or, in 

other words, the one with which the greatest number of jurists would agree. . . . [While the] 

‘narrowest’ answer to a legal question is the one affecting the least number of cases.” Id.
- 25 -

III. CONCLUSION

In sum, we hold that the terms “employer” and “employee” in Code § 40.1-2 permit 

employees to have more than one employer if the employers are “similar entit[ies]” within the 

meaning of Code § 40.1-2. Code § 40.1-2. These similar entities are those that 1) are the same 

type of entity as provided for in the “employer” definition; 2) “employ” the employee in question 

who works in exchange for “wages, salaries, or . . . commission”; and 3) owe some duty or have 

some form of privity with the principal entity. Id. In determining whether an entity qualifies as 

an additional “employer” under Code § 40.1-2, we are guided by the Virginia common law 

borrowed employee doctrine. We also hold that the General Assembly has abrogated the

common law to the extent of requiring the putative employee to plead facts showing that the 

“special employer” paid the borrowed employee “wages, salaries, or . . . commission.” Because 

Harris failed to make that showing, we affirm the circuit court’s judgment.

Affirmed.