Employment Law Chronicle for Virginia & the District of Columbia

More than a year after the D.C. Council passed a paid sick leave law for employees in the District of Columbia, the Mayor's office is expected to issue regulations soon. Regulations are needed to clarify ambiguities so that employees know their rights and employers know their obligations, which exist already. A recent Washington Post article illustrates the need for regulations concerning D.C.'s sick leave law, now. Yesterday, in a Letter to the Editor, a writer highlighted the urgent need for regulations. I concur.

For more information about the District of Columbia's paid sick leave law, see my prior posts here and here.

The Equal Employment Opportunity Commission (EEOC) has issued a revised "Equal Employment Opportunity is the Law" poster describing recent changes in employment law including the Americans with Disabilities Act Amendments of 2008 (ADAA) and the Genetic Information Nondiscrimination Act of 2008 (GINA).

Employers are required to post the notice, which describes federal employment discrimination laws prohibiting discrimination on the basis of race, color, sex, national origin, religion, age, equal pay, disability and genetic information. Copies of the EEOC poster can be requested through the EEOC's website.

I often represent clients on claims that an employer’s business interests were harmed by the disloyal or otherwise unlawful conduct of a former employee. Typically, these employer lawsuits allege breach of contract, breach of the duty of loyalty, misappropriation of trade secrets, conspiracy, tortious interference and related claims. Below are some questions and answers designed to present these concepts in general terms.

Question: What is the common law fiduciary duty of loyalty?

Continue reading "Virginia Employment Law: Employee Breach of Contract, Duty of Loyalty and Misappropriation of Trade Secrets" »

Here, I provided FAQ's for employers and employees in Virginia and the District of Columbia concerning employment separation or severance agreements. As noted, a typical separation agreement will include a broad waiver and release of claims the employee may have had against the employer in exchange for severance pay and other consideration.

Recently, the Equal Employment Opportunity Commission ("EEOC") published Understanding Waivers of Discrimination Claims in Employee Severance Agreements. This publication provides a useful overview of the potential legal effect of waivers and releases of age, sex, race, gender, disability or other employment discrimination claims. As reflected in the EEOC's publication, parties on both sides of severance agreements are best served by retaining competent legal counsel.

For help with drafting, negotiating, or interpreting a separation or other employment agreement, feel free to contact Searcy Law Offices, LLC at 703-644-4122 in Virginia or 202-393-1443 in the District of Columbia.

Effective today, July 24, 2009, the federal minimum wage is $7.25. Here is a link to the Federal Minimum Wage Poster.

Employment discrimination based on age popped up on my radar screen because of a media inquiry I received yesterday resulting from my blog post on the Supreme Court's recent decision in Gross v. FBL, and a Legal Times report this morning about an age discrimination case filed in the District of Columbia against a well-known law firm.

While the best defense against employment discrimination cases is to ensure that employment-related decisions are based on business reasons free of discriminatory bias, I thought it would be useful to refer readers to a previous post about layoffs, reductions and employee terminations.

By way of background, E-Verify is an internet-based system operated by the Department of Homeland Security (DHS) that allows employers to verify their employees' work eligibility. E-Verify aims to ensure that federal government contractors do not hire unauthorized immigrant workers. The E-Verify system cross checks information from the I-9 (Employment Eligibility Verification Form) used by employers with immigration and social security databases.

After considerable delay, beginning on September 8, 2009, most federal government contract solicitations and federal government contract awards will include a clause requiring federal government contractors to use E-Verify. Government contractors will have 30 days from the contract date to enroll in E-Verify.

As a practical matter, federal government contractors and subcontractors in Virginia, the District of Columbia, and nationwide should begin taking steps now for a smooth transition to the E-Verify system. DHS'
frequently asked questions and answers about the E-Verify system is a good place to begin getting up to speed.

In Gross v. FBL Financial Services, Inc. (Gross), an important 5-4 employment law decision, the Supreme Court of the United States held that a "mixed-motive" jury instruction is "never proper" in a suit brought under the Age Discrimination in Employment Act (ADEA). A "mixed-motive" case exists where the employee presents evidence that the employer's adverse decision was motivated, in part, by unlawful discrimination even if the employer was motivated by other, lawful reasons.

In analogous Title VII cases, where an employee presents direct evidence that the employer's adverse decision was motivated in part by unlawful employment discrimination (because of race, sex, religion, national origin, or color), a burden-shifting mechanism kicks in. Instead of the norm where the burden of persuasion rests with the employee, the jury in a Title VII mixed-motive case is instructed that the employer bears the burden of persuasion to establish that it would have made the same adverse decision absent the alleged unlawful discrimination.

Based on the majority's view of differences in the statutory language of Title VII and the ADEA, the Court refused to apply Title VII's burden-shifting mechanism to ADEA claims. Under Gross, regardless of whether an employee presents direct (or other) evidence that age was a motivating factor in the employer's adverse decision, the employee always retains the burden of persuasion to establish "but-for" causation, i.e., that age discrimination was, in fact, the reason for the adverse decision. As a practical matter, Gross makes age discrimination claims, which were already difficult for employee's to establish because of the comparatively high "but-for' causation standard, ever more difficult from the employee's perspective.

Held: Vacated and remanded, THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

Employment lawyers in D.C. and Virginia who are tracking progress of the American Law Institute's Restatement of Employment Law, should read this update from the Virginia Lawyers Weekly. According to article, while progress is ongoing -- amidst expected controversy between plaintiff and management-side employment lawyers -- an Employment Law Restatement is at least three-to-four years away.

As a courtesy to District of Columbia employers and employment lawyers, The Employment Law Chronicle provides summaries and links (where available) to key District of Columbia labor and employment laws.

The D.C. Wage Payment and Wage Collection Law applies to most non-government employers in the District of Columbia. In general, it requires employers to pay employees wages earned at least twice a month on regular paydays and to make timely payment of wages upon an employee's departure. The wage law does not apply to executives, administrative, or professional employees.

Here are answers to some frequently asked questions about payment of wages in the District of Columbia:

Continue reading "D.C. Employment Law: District of Columbia Wage Payment and Wage Collection Law, D.C. Code §§ 32-1301 et seq. " »

Click here for the Department of Labor's Model COBRA notices for compliance with the provisions of the American Recovery and Reinvesment Act (the stimulus bill).

As a courtesy to Virginia employment lawyers and employers, The Employment Law Chronicle provides summaries and links to key business and employment law statutes. While the Virginia Conspiracy Act does not protect employment interests, it is often invoked in Virginia business litigation on allegations that a former employee conspired with a subsequent employer or others to injure the former employer's business interests.

Specifically, the Virginia Conspiracy Act provides for civil actions based on a conspiracy by two or more persons to injure a person or entity's business interests (not employment interests). In addition to injunctive relief, a prevailing plaintiff may recover treble damages (three-times the amount of damages), plus attorneys' fees and costs.

Key provisions of the Virginia Business Conspiracy Act follow:

Continue reading "Virginia Employment Law: Virginia Business Conspiracy Act, VA Code §§ 18.2-499 - 18.2-500" »