March 19, 2015

Spring 2015 Washington, DC Employment Law Update

Arnold & Porter Advisory

As winter melts slowly into spring, employers in Washington, DC face a slew of new employment laws and obligations in 2015, including burdensome new notice and posting requirements with which all employers must carefully comply. This Advisory summarizes the most important new laws, changes and requirements that all employers should be aware of and offers practical tips for compliance.

Wage Theft Prevention Act – New Pay Notice Requirements

On February 26, 2015, the DC Wage Theft Prevention Amendment Act officially became law. In addition to substantially increasing penalties and damages for employers that violate DC's wage-hour and sick leave laws, the Act created – for the first time – wage notice requirements for all DC-employers, including non-profits, regardless of size.

First, effective immediately, employers must begin issuing wage notices to every new hire who will be working at least 50% of the time in DC. These new hire notices should become part of every employer's standard on-boarding or new-hire packet that employees receive and sign on their first day of work. Second, within 90 days of the Act's effective date (i.e., on or before May 27, 2015), employers must issue wage notices to all existing employees who work at least 50% of the time in DC. Third, employers must issue new or amended wage notices to employees each time any of the information contained in the notice changes, including any time there is a change in pay.

Notices must be provided in the form of a sample template that has recently been made available on the website of the DC Department of Employment Services (DOES). A link is here. Information required in the notices include:

  • the name of the employer and any "doing business as" names used by the employer;
  • the physical address of the employer's main office or principal place of business, and a mailing address, if different;
  • the telephone number of the employer;
  • the employee's rate of pay and the basis of that rate, including by the hour, shift, day, week, salary, piece or commission; any allowances claimed as part of the minimum wage, including tip, meal or lodging allowances; overtime rate of pay, as well as exemptions from overtime pay (listing the specific exemption); living wage and exemptions from the living wage; and the applicable prevailing wages;
  • the employee's regular payday designated by the employer; and
  • any other information the Mayor considers to be material and necessary.

In addition to English, the notice may have to be translated into an employee's primary language, but only if: (i) the employer knows it is the employee's primary language or the employee requests the notice in such other language; and (ii) the DC Mayor's office has provided a sample translated notice in such language. A Spanish-translated notice should soon be available upon request (and may be posted shortly), and employers can request notices from DOES for employees with primary languages other than English or Spanish by calling (202) 671-1880.

As proof of compliance, the Act directs employers to retain copies of the written notices that have been signed and dated by the employer and the employee acknowledging receipt. Although both the law and its regulations are silent as to whether electronic notice (and acknowledgment of receipt) would constitute sufficient notice and proof of compliance, DOES has stated in a recent webinar that electronic service and notice will be acceptable.

In addition to the individual notices to employees, DOES has taken the position that employers must also post the Mayor's Notice of the Act (which summarizes the Act) in a conspicuous place in the workplace. A copy of the Notice is here. While such a requirement does not appear in the Act itself, the safest approach – particularly given DOES' position – is to post the notice along with all other workplace posters.

The Act also: (i) establishes new record-keeping obligations on employers – requiring employers to track and record non-exempt employees' "precise time worked each day and each workweek;" (ii) imposes joint and several liability on contractors and subcontractors, temporary staffing agencies, and the employers to whom they supply workers for violations of the various wage-hour and sick leave laws amended by the Act; (iii) increases penalties and damages for violations of wage-hour and sick leave laws, including 300% liquidated damages for minimum wage act violations; (iv) provides broad retaliation protections for employees; and (v) establishes a fast-tracked administrative scheme for employee complaints (as an alternative to private causes of action).

Practical Tips

Employers must immediately begin complying with the Act by issuing pay notices to all new hires and preparing to issue pay notices for all existing employees by May 27, 2015. The summary Notice of the Act should also be posted conspicuously in the workplace. Employers should also carefully review all policies and practices to ensure compliance with all wage-hour and sick leave laws, and review any contractor, sub-contractor and staffing agency agreements to protect and/or indemnify against potential joint employer claims.

Protecting Pregnant Workers Fairness Act of 2014 – New Notice and Posting Requirements

Effective March 3, 2015, all employers in DC are prohibited from taking adverse actions against and must provide reasonable workplace accommodations to employees requesting or needing such accommodations due to pregnancy, childbirth, related medical conditions or breastfeeding.

Reasonable accommodations do not include steps or actions that would cause an undue hardship on the employer's business operations or require significant expenses, but would typically include: more frequent or longer breaks; time off to recover from childbirth; purchasing or modifying equipment or seating; a temporary transfer to a less strenuous or hazardous position, or other job restructuring such as light duty or a modified work schedule; relocating the employee's work area; or providing private non-bathroom space for expressing breast milk.

All employers must also post and maintain a notice of rights in both English and Spanish in the workplace and provide written notice of an employee's rights to: (i) all new hires, effective immediately; (ii) all existing employees, within 120 days of the Act's effective date (i.e., on or before July 1, 2015); and (iii) each employee who notifies the employer of her pregnancy or other condition covered by the Act, within 10 days of the notification.

As currently drafted, the Act also requires the written notice of rights to be translated for any non-English and non-Spanish speaking employee. It is unclear at this point if or when a sample poster or notice will be issued by the DOES, and whether translations beyond those provided by DOES will be required.

Practical Tips

Employers should make sure to update their handbooks and policies to include language mirroring the Act, prepare their own notices and poster (and look out for official templates issued by DOES and rules issued by the Mayor), and establish procedures for responding to and handling accommodation requests. Training materials should also be updated to include a more robust treatment of accommodating pregnancy and related medical conditions.

Wage Transparency Amendment Act of 2014

Effective March 11, 2015, private employers in Washington, DC (including non-profit organizations) are prohibited from disciplining, interfering with, retaliating against or establishing policies or practices that purport to prohibit employees from discussing, disclosing or comparing their own wages or the wages of other employees. The law is similar to President Obama's recent Executive Order, which applies to all federal contractors and subcontractors.

The law contains only limited exceptions. For example, an employer can prohibit an employee from disclosing such information if they have regular access to wage information as part of their job, and the law does not impact employment contracts entered into prior to the effective date.

Violations of the law will result in civil fines of US$1,000 for the first violation, US$5,000 for the second violation and US$20,000 for each violation thereafter, but the law does not provide for any private right of enforcement.

Practical Tips

Employers should carefully review their employee handbooks, policies and employment agreements to ensure that they comply with the new law, and remove any policies or provisions prohibiting the discussion of wages. Managers should also be trained on the new law.

"Ban the Box" – Fair Criminal Record Screening Amendment Act of 2014

Effective December 17, 2014, DC joined 13 states (and over 60 cities and counties, including Baltimore, Montgomery and Prince George's Counties) in banning most employers from asking job applicants to check the box whether they have ever been arrested (other than currently pending arrests), convicted or accused of a crime that did not result in a conviction or that is not currently pending. The law applies to private and DC government employers with more than 10 employees in DC.

Employers may obtain information about an applicant's criminal background through a valid background check conducted after a conditional offer of employment has been made. And, even then, an employer who properly asks about a conviction can only withdraw the offer or take adverse action against the applicant for legitimate business reasons taking into account six factors, including: (i) the specific duties and responsibilities of the position; (ii) fitness or ability of the applicant to perform the job duties given the offense; (iii) time elapsed since the occurrence of the offense; (iv) age of the applicant at the time of the offense; (v) frequency and seriousness of the offense; and (vi) information provided by the applicant that indicates rehabilitation or good conduct since the offense occurred.

Practical Tips

Employers must ensure that their job applications, including any online applications, properly comply with the law. In addition, where background checks are performed, employees making hiring decisions should be properly trained to make such decisions in a manner consistent with the six factors outlined above.

Minimum Wage and Living Wage Acts

Effective January 1, 2015, the Living Wage for employees of most contractors and subcontractors of the District of Columbia increased to US$13.80 per hour. An updated workplace poster containing this information has also been made available on the DC Department of Employment Services' website, here.

Effective July 1, 2015, the minimum wage in the District of Columbia will increase from US$9.50 per hour to US$10.50 per hour. Employers should make sure that they have the most up-to-date DC Minimum Wage poster on their premises. In addition, a new copy or summary of the Minimum Wage Act will be made available on or before April 27, 2015 and must be promptly posted by employers.


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