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 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.

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:

The wage payment law applies to almost all non-government employers in the District of Columbia. It does not apply to the Federal Government, D.C. Government, or employers subject to the Railway Labor Act.

Does the wage payment law cover all employees in the District of Columbia?

No. Employees covered by D.C.'s wage payment law include "any person suffered or permitted to work by an employer except any person employed in a bona fide executive, administrative, or professional capacity (as such terms are defined and delimited by regulations promulgated by the Council of the District of Columbia)."

What wages are protected by the D.C. wage law?

The District of Columbia wage law defines wages as "monetary compensation after lawful deductions, owed by an employer for labor or services rendered, whether the amount is determined on a time, task, piece, commission, or other basis of calculation."

When must an employer pay an employee wages earned?

In general, employers in the District of Columbia must pay employees wages earned at least twice a month on regular paydays.

If an employee resigns or is fired, when must the employer pay wages that were earned before the employee's departure?

In general, the District of Columbia Wage Payment and Wage Collection Law requires payment of wages earned prior to an employee's departure as follows:

Termination: "Whenever an employer discharges an employee, the employer shall pay the employee's wages earned not later than the working day following such discharge; provided, however, that in the instance of an employee who is responsible for monies belonging to the employer, the employer shall be allowed a period of 4 days from the date of discharge or resignation for the determination of the accuracy of the employee's accounts, at the end of which time all wages earned by the employee shall be paid."

Voluntary Resignation: "Whenever an employee (not having a written contract of employment for a period in excess of 30 days) quits or resigns, the employer shall pay the employee's wages due upon the next regular payday or within 7 days from the date of quitting or resigning, whichever is earlier."

If work is suspended because of a labor dispute, when does an employer have to pay wages that an employee has earned?

In the case of a labor dispute resulting in suspension of work, the employer must pay wages earned at the time of the work suspension by the next regular payday.

What if the employer disputes the amount of wages due?

If there is a "bona fide dispute" about the amount of wages earned by an employee, the employer must provide the employee with written notice of the amount the employer concedes to be due and must pay the amount conceded as required by the law.

Unless a specific exception exists in the law (such as terms of a collective bargaining agreement), an employee's right to receive payment for wages earned cannot be waived.

This information is not intended to and should not be construed as legal advice for any specific employment action. If you have questions about payment of wages under District of Columbia law or other employment law issues, feel free to contact Lori J. Searcy, Searcy Law Offices, LLC at 703-644-4122.

Courts in Virginia and the District of Columbia have carved out “narrow” exceptions to the at-will doctrine for claims of "wrongful termination" or "wrongful discharge" in violation of public policy. The highest courts of the respective jurisdictions have expressed the public policy exception to the at-will doctrine as follows:

Under the "Adams-Carl" line of cases, the District of Columbia Court of Appeals has recognized a "very narrow" public policy exception to the at-will doctrine. To establish a claim of wrongful discharge, a fired at-will employee must show that the employer's action contravened an "identifiable policy that has been officially declared in a statute or municipal regulation, or in the Constitution."

A close fit must exist between the identifiable policy and the conduct at issue in the wrongful termination. An employer may not, for example, fire an employee "when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation."

Virginia Wrongful Termination Claims

The Virginia Supreme Court has recognized a “narrow exception” to the at-will doctrine for claims of wrongful termination based on one of these three grounds:

1. The employer discharged the employee for exercising a right created by statute.

2. The employer fired the employee for refusing to commit a crime.

3. The employer violated a public policy explicitly expressed in a statute where the employee is clearly a member of the class of persons protected by the statute. (Note: A 1995 amendment to the Virginia Human Rights Act (VHRA) prevents common-law wrongful termination claims for violations of public policies expressed in the VHRA.)

This information is not intended to and should not be construed as legal advice for any specific employment action. If you have questions about the at-will doctrine or wrongful termination claims as applied to a specific employment situation, feel free to contact Lori J. Searcy, Searcy Law Offices, LLC at 703-644-4122.