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:
]]> Does the wage payment law apply to all D.C. employers?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.
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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:
]]> § 18.2-499. Combinations to injure others in their reputation, trade, business or profession; rights of employeesA. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § 18.2-500.
B. Any person who attempts to procure the participation, cooperation, agreement or other assistance of any one or more persons to enter into any combination, association, agreement, mutual understanding or concert prohibited in subsection A of this section shall be guilty of a violation of this section and subject to the same penalties set out in subsection A.
C. This section shall not affect the right of employees lawfully to organize and bargain concerning wages and conditions of employment, and take other steps to protect their rights as provided under state and federal laws.
§ 18.2-500. Same; civil relief; damages and counsel fees; injunctions
A. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and without limiting the generality of the term, "damages" shall include loss of profits.
B. Whenever a person shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-499 and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants' and defendants' counsel.
The preceding is effective as of the posting date. For updates on the Virginia Business Conspiracy Act, check the Virginia Code on-line.
]]>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:
]]> D.C. Wrongful Discharge ClaimsUnder 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.
]]>Sections 1981, 1983, 1985(3) and 1986 of Title 42 were enacted post-slavery to advance the goals of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. In modern-day employment discrimination lawsuits, employees often invoke these Reconstruction Era Civil Rights Acts to supplement or avoid jurisdictional and procedural requirements in Title VII and other employment discrimination statutes or to increase potential damages.By way of summary:
Section 1981 prohibits intentional race discrimination in contracts (including “at-will” employment).
Section 1983 provides a remedy for violation of federally protected rights where state action is involved.
Sections 1985 and 1986 apply to conspiracies to deprive persons of equal rights and privileges.What is Section 1981, and under what circumstances can it be raised in an employment discrimination case?
42 USCS § 1981 (Section 1981), as amended by the Civil Rights Act of 1991, prohibits intentional race discrimination in contracts (including “at-will” employment). Section 1981 applies to most private individuals and entities and to actions under color of State law. The U.S. Supreme Court has held, however, that Section 1981 normally cannot be raised by federal employees because Title VII is the exclusive remedy for race discrimination claims by most federal employees.Section 1981 provides as follows:
(a) Statement of equal rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.What is Section 1983, and how does it apply to employment discrimination claims?(b) "Make and enforce contracts" defined. For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment. The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1983 does not provide any substantive rights; rather it provides a remedy for violation of existing federally protected rights. For example, employees tend to raise Section 1983 claims by asserting that an employer violated the employee's First or Fourteenth Amendment rights of free speech, equal protection or due process.Section 1983 states as follow:Section 1983 does not apply to the Federal Government or purely private action. It applies only to person acting under color of state law (state action). While municipalities and other local government units are subject to Section 1983, issues of immunity often arise in claims against certain individuals and state government agencies.
Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.How do Sections 1985 and 1986 of the Reconstruction Era Civil Rights Acts apply in employment discrimination cases?
Section 1985(3) applies in employment discrimination claims alleging a conspiracy to deprive a person of the equal rights or privileges.
Section 1986, a companion statute to Section 1985, assigns liability to a person who could have but knowingly failed to prevent a Section 1985 conspiracy.]]>
The drop-down menu on the left under "Employment Laws" categorizes the statutes collected thus far by jurisdiction. The goal for completion of the initial phase with at least a blurb and link to or summary of each major statute as soon as possible. Stay tuned.
]]>Media General Operations, Inc., d/b/a The Tampa Tribune v. National Labor Relations Board, No. 08-1153 (March 13, 2009). Before KING and DUNCAN, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.
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In this case, employee James Dotson (Dotson) was awarded more than $722,000 on his FMLA interference and retaliation claims, including $333,305 in statutory liquidated damages, $375,000 in attorneys' fees, and $14,265 in costs. Each party appealed different rulings of the trial court. On appeal, the Fourth Circuit affirmed the judgment, except as to the trial court's denial of pre-judgment interest. Holding that pre-judgment interest on FMLA damage awards is mandatory, the Fourth Circuit remanded the case, directing the trial court to recalculate Dotson's damage and fee awards to include pre-judgment interest.
The following arguments made by Pfizer and rejected by the Fourth Circuit provide clear guidance to employers that the burden is on employers -- not employees -- to understand and properly apply the FMLA:
]]> FMLA Intermittent Adoption Leave -- Agreement by Acquiescence: Under the FMLA, eligible employees may take 12 weeks of leave during any 12-month period "[b]ecause of the placement of a son or daughter with the employee for adoption or foster care." For adoption or foster-care leave, an employee is not entitled to intermittent leave "unless the employee and the employer . . . agree otherwise."According to Dotson, Pfizer interfered with his FMLA rights by asking him to work while traveling to Russia on adoption leave, a day that should have been FMLA-protected. On appeal, Pfizer argued that because Dotson had taken a prior FMLA adoption-related leave, the second leave request was not FMLA-protected because Pfizer had not expressly agreed to grant Dotson intermittent (separate blocks of) leave for the adoption.
The Fourth Circuit held that by not denying Dotson's separate leave requests, Pfizer had effectively agreed to grant Dotson intermittent leave under the FMLA. Pfizer's interference with Dotson's intermittent leave therefore created a legal claim.
FMLA Retaliation for FMLA-Qualifying Leave-- Dotson claimed that Pfizer discharged him in retaliation for exercising his FMLA rights. On appeal, Pfizer argued that it could not have engaged in unlawful FMLA retaliation, in part, because Dotson had not notified Pfizer that he was requesting FMLA leave.The Fourth Circuit noted that "employees do not need to invoke the FMLA in order to benefit from its protections," and there is no need for employees to even mention the FMLA. Rather, if an employee states, for example, that leave is needed for birth, adoption, or some other FMLA-covered absence, the burden shifts to the employer to determine whether the FMLA applies. In other words, employees do not have to use any "magic words" to invoke FMLA rights. Because the evidence was sufficient to conclude that Pfizer had terminated Dotson in retaliation for Dotson's exercise of FMLA rights, Pfizer was liable for FMLA retaliation.
Dotson v. Pfizer Inc., March 4, 2009
For more information on FMLA leave or other employment-law matters, contact Lori Searcy at 703-644-4122.
Answer: While each anti-discrimination law defines what discrimination means, it is generally illegal for a covered employer to fail or refuse to hire, to fire, or to otherwise discriminate against an applicant or employee with respect to compensation, terms, conditions, or privileges of employment, because of such person's race, sex, religion, color, national origin, or other protected category. Unless the company can establish "undue hardship," it is also unlawful for a covered entity to fail to provide a "reasonable accommodation" to an employee or applicant's religion or disability. It is also illegal to retaliate against someone for exercising rights under employment discrimination laws.
Question: How is employment discrimination proven in court?
Answer: In addition to theories based on retaliation and whistleblowing, employees rely on the following employment-law theories to prove that an employer or other covered entity engaged in employment discrimination:
Disparate Treatment, which is the simplest theory to understand, refers to a claim that an employer or other covered entity intentionally treated the employee or applicant unfavorably because of such person's race, color, religion, sex, or national origin, or other protected status.
Disparate, Adverse Impact refers to a claim that the company's otherwise lawful policy has a significant adverse impact on a protected group. Examples include tests or other criteria for hiring or promotions that seem neutral on the surface but can be shown to limit the opportunities of persons based on race, sex, or other protected status.
Failure to Accommodate: Laws prohibiting discrimination because of religion or disability generally require the employer to provide a "reasonable accommodation" to the individual's religion or disability, unless doing so would cause an "undue hardship" to the company.
Stay tuned to the Employment Law Chronicle for coming entries about the many Federal, Virginia and District of Columbia laws that govern employment discrimination and the categories protected by such laws.
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Answer: No law in the District of Columbia or Virginia requires a company to pay severance to employees who are fired. laid-off or otherwise leave the job. Severance pay may, however, be required for executives or other workers under employment agreements. Severance may also be an essential component of an employee separation agreement where the employee is asked to "release" potential employment discrimination or other claims against the employer. Employers should note that certain severance pay plans are subject to requirements of the Employee Retirement Income Security Act (ERISA).
Question: How much severance pay is typically offered to an executive or other employee?
Answer: Severance pay packages vary widely. Factors that determine the appropriate level of severance include industry standards, the company's ability to pay severance, the availability of other benefits to offset severance pay, and the relative bargaining power of the parties, also known as leverage.
Question: What terms are typically included in an employment Separation Agreement?
Answer: Every Separation Agreement must be tailored to the particular employer and employee, but issues that typically require negotiation include: (1) employee compensation and benefits upon termination; (2) release of liability for claims; (3) references and other matters important to the employee's interest in securing future employment; (4) non-compete, non-disclosure agreements and other restrictive covenants important to the employer's interest in protecting business secrets; and 5) confidentiality of the Separation Agreement.
Question: What are employment "release" agreements, and are releases enforceable?
Answer: In the context of employment law, a "release" is an agreement between the employer and employee under which either or both waive the right to sue the other on certain potential claims. Separation agreements that include severance pay or other valuable consideration to the employee often include broad releases in which the employee generally waives the right to sue the employer for employment discrimination or any other claims that may have arisen during the course of employment. Several employment-law statutes govern the terms, conditions and legal scope of employee releases.
In short, no two separation agreements are alike. Rather, each agreement must be tailored to the specific relationship and circumstances. To schedule a consultation concerning Separation Agreements, Severance, or Releases, contact Searcy Law Offices at 703-644-4122 (Virginia) or 202-393-1443 (District of Columbia).
The Department of Labor has a useful summary of the COBRA subsidy with links to the provisions of the American Recovery and Reinvestment Act (the stimulus bill). This provision needs to be read and understood by employers and employees alike.
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