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State snapshot

Key considerations
Which issues would you most highlight to someone new to your state?

In recent years, there has been significant legislative activity providing greater rights to employees and imposing obligations on employers. 

D.C. has increased the minimum wage from $8.25 to $10.50 (it will be $11.50 from July 1 2016). In future, the minimum wage will increase based on an inflation index. 

The D.C. Wage Theft Prevention Act 2014 enhances remedies, fines, and administrative penalties when an employer fails to pay earned wages, and includes new anti-retaliation provisions and a written notice requirement that will affect all D.C. employers. Employers are required to provide a notice (both in English and the employee’s primary language) to each D.C.-based employee containing specific information about the employee's terms and conditions of employment. Employers must also provide a similar notice to all new hires at the time of hiring and to any employee whenever any of the employment information contained in the original notice changes. These notices must be signed by both employer and employee and kept for three years. The anti-retaliation provision includes a presumption of retaliation if an employee engaged in protected activity related to the act loses his or her position within 90 days of engaging in such conduct, and the presumption can be overcome only with clear and convincing evidence.

D.C. has a paid sick and safe leave requirement that provides benefits based on the number of employees, with an annual maximum leave of three to seven days.

From January 1 2016 D.C. employers must provide at least one of the following transportation benefit programs to employees:

  • a benefit program that allows employees to make a monthly pre-tax election to pay for commuter highway vehicle, transit, or bicycling benefits at benefit levels at least equal to the maximum amount that may be deducted for such programs from an employee’s gross income;
  • an employer-paid benefit program whereby the employer supplies, at the election of the employee, a transit pass for the public transport system requested by each employee or reimbursement of van-pooling or bicycling costs to an amount at least equal to the purchase price of a transit pass for an equivalent trip on public transport; or
  • employer-provided transportation at no cost to the covered employee in a van-pool or a bus operated by or for the employer.

What do you consider unique to those doing business in your state?

D.C. has increased the minimum wage from $8.25 to $10.50 (it will be $11.50 from July 1 2016). In future, the minimum wage will increase based on an inflation index. 

The D.C. Wage Theft Prevention Act 2014 enhances remedies, fines, and administrative penalties when an employer fails to pay earned wages, and includes new anti-retaliation provisions and a written notice requirement that will affect all D.C. employers. Employers are required to provide a notice (both in English and the employee’s primary language) to each D.C.-based employee containing specific information about the employee's terms and conditions of employment. Employers must also provide a similar notice to all new hires at the time of hiring and to any employee whenever any of the employment information contained in the original notice changes. These notices must be signed by both employer and employee and kept for three years. The anti-retaliation provision includes a presumption of retaliation if an employee engaged in protected activity related to the act loses his or her position within 90 days of engaging in such conduct, and the presumption can be overcome only with clear and convincing evidence.

D.C. has a paid sick and safe leave requirement that provides benefits based on the number of employees, with an annual maximum leave of three to seven days.

From January 1 2016 D.C. employers must provide at least one of the following transportation benefit programs to employees:

  • a benefit program that allows employees to make a monthly pre-tax election to pay for commuter highway vehicle, transit, or bicycling benefits at benefit levels at least equal to the maximum amount that may be deducted for such programs from an employee’s gross income;
  • an employer-paid benefit program whereby the employer supplies, at the election of the employee, a transit pass for the public transport system requested by each employee or reimbursement of van-pooling or bicycling costs to an amount at least equal to the purchase price of a transit pass for an equivalent trip on public transport; or
  • employer-provided transportation at no cost to the covered employee in a van-pool or a bus operated by or for the employer.

Is there any general advice you would give in the labor/employment area?

D.C. is an at-will employment jurisdiction, but employers must be careful of the new anti-retaliation provisions in the Wage Theft Prevention Act 2014 due to the strong presumption of retaliation within 90 days of an employee engaging in protected activity. D.C. employers must also take care to ensure that they provide the necessary notices of terms and conditions of employment and post all applicable legal posters.

Emerging issues
What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?

The trend is increased employee benefits (wage and non-wage), enhanced penalties, and increased administrative requirements on employers. 

Proposals for reform
Are there any noteworthy proposals for reform in your state?

The D.C. Council is considering establishing a paid family and medical leave act system for private-sector employees. If enacted, it would provide some level of wage replenishment for workers on leave, the amount of which would depend on their wage rate relative to the minimum wage. The system would be funded by contributions from employers, with a sliding percentage rate based on an employee’s salary and a 1% maximum contribution rate.

Employment relationship

State-specific laws
What state-specific laws govern the employment relationship?

Generally, D.C. laws mirror federal laws regarding the employment relationship: common law at-will employment rules govern. The main D.C. laws that govern the employment relationship are D.C. Code Ann. § 32- 101 and D.C. Code Ann. § 32-1671.

Who do these cover, including categories of workers?

All workers are covered, except workers employed under a contract for a specific period or exempt from the at-will employment rules.

Misclassification
Are there state-specific rules regarding employee/contractor misclassification?

In D.C., four factors are considered in determining a worker’s status:

  • selection and engagement of the worker;
  • method of payment of compensation;
  • power of the service recipient over the worker; and
  • whether the service performed by the worker is a part of the regular business of the service recipient.

In 2013 the D.C. Council enacted the Workplace Fraud Act, partly to deter the perceived misclassification of independent contractors in the construction industry (D.C. Code Ann. § 32-1331.02):

The act presumes an employer-employee relationship exists, unless an employer demonstrates that the worker is an exempt person or an independent contractor (Id. § 32-1331.04).
The act requires employers to maintain records of the following for at least three years:

  • name, address, occupation and classification of employees, exempt persons or independent contractors;
  • each individual’s pay rate and method of payment;
  • each individual’s classification;
  • amount paid to each individual;
  • hours worked by each individual per day and working week; and
  • for individuals not classified as employees, evidence that they are exempt or independent contractors (or employees thereof) (Id. § 32-1331.12).

The act imposes penalties for violations ranging form $1,000 to $20,000, as well as possible stop-work orders and a requirement to pay restitution (Id. § 32-1331.07).

Contracts
Must an employment contract be in writing?

An employment contract need not be in writing, unless the term of employment exceeds one year.

Are any terms implied into employment contracts?

The general common law expectation of implied duty of good faith and fair dealing is always applicable where employment is not an at-will relationship. Employee handbooks, oral promises, and established company policies may potentially constitute contracts between an employee and employer.

Are mandatory arbitration agreements enforceable?

D.C. enforces mandatory arbitration agreements (D.C. Code Ann. § 16-4406). Under D.C. law, arbitration is predicated on the consent of the parties to a dispute, and the courts determine whether the parties have consented to arbitrate a matter based on the contract between the parties. There must be a “meeting of the minds” as to all material terms to have an enforceable contract. Although a written contract is not required to enforce arbitration, D.C. employers implementing a mandatory arbitration program should have all employees acknowledge its receipt and intention to be bound by the agreement in a formal manner. 

How can employers make changes to existing employment agreements?

As with any contract, the parties must mutually agree to any changes made to existing employment contracts.

Hiring

Advertising
What are the requirements relating to advertising open positions?

D.C. employers cannot issue job advertisements that indicate any preference, limitation or distinction based on an individual’s race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, matriculation, physical handicap or political affiliation (D.C. Code Ann. § 2-1402.11(a)(4)(B)). Nothing in the D.C. Human Rights Act can be construed to supersede any federal rule, regulation or act (D.C. Code Ann § 2-1401.03(c)). This restriction applies not only to the content of an employer’s advertisements, but also to the placement of an advertisement in a newspaper, magazine or other promotional medium that is geared toward, or against, one of the protected classes (D.C. Mun. Regs. tit.,4, § 502.1).

Background checks
What can employers do with regard to background checks and inquiries?

(a) Criminal records and arrests

D.C. “ban the box” legislation prohibits a covered employer from asking job applicants about, or requiring an applicant to disclose or reveal, an arrest or criminal accusation that did not result in a conviction or is not currently pending. An employer can obtain information about an applicant’s criminal convictions only after a conditional offer of employment has been made. The employer can withdraw that conditional offer, or take some adverse action against an applicant, only for a “legitimate business reason” that involves consideration of the following:

  • specific duties and position responsibilities;
  • bearing of the criminal offense on the applicant’s fitness or ability to perform the job;
  • time that has elapsed since the offense;
  • age of the applicant at the time of the offense;
  • frequency and seriousness of the offense; and
  • any information provided by the applicant to show that he or she has been rehabilitated.

The law applies to public and private employers who employ more than 10 employees in D.C., including temporary and seasonal workers, contract workers, and contingency workers. The law does not apply to:

  • any facility or employer that provides programs, services, or direct care to minors or vulnerable adults;
  • positions where a federal or D.C. law or regulation requires consideration of an applicant’s criminal history;
  • positions designated by the employer as part of a federal or D.C. program designed to encourage employment of those with criminal histories; and
  • D.C. courts. 

(b) Medical history

An employee’s or applicant’s genetic information is a protected classification under the D.C. Human Rights Act. Employers are prohibited from discriminating against an employee or applicant on the basis of his or her genetic information (D.C. Code Ann. § 2-1401.01). Pre-employment medical inquiries designed to elicit information as to whether an applicant is disabled, or to determine the severity of an applicant’s disability, are prohibited except for limited inquiries as provided by law (D.C. Mun. Regs. tit. 4, § 503.6). Pre-employment inquiries may allow inquiry into the physical condition or past medical history of an individual for purposes of compliance with affirmative action requirements of the federal or D.C. governments, or based on a business necessity (D.C. Mun. Regs. tit. 4, § 503.3; D.C. Mun. Regs. tit. 4, § 514.3)).

(c) Drug screening

D.C. does not prohibit private-sector employers from administering drug and alcohol tests. An employer may test a prospective employee for marijuana use only after a conditional offer of employment has been extended, unless otherwise required by law (D.C. Code Ann. § 32-931(a)).

(d) Credit checks

D.C does not prohibit employers from accessing an employee’s or applicant’s credit history or discriminating against that employee or applicant based on his or her credit history. However, employers that make employment decisions based on an employee’s or applicant’s credit history are subject to the requirements of the Federal Fair Credit Reporting Act.

While there is no case law focused on whether the use of credit checks is subject to disparate impact claims under the D.C. Human Rights Act, employers should still monitor how the use of such screening devices affects job applicants, as it is conceivable that a disparate impact claim could be brought under the act by way of the effects clause (D.C. Code Ann. § 2-1402.68).

(e) Immigration status

In D.C., the Office of Human Rights and Commission on Human Rights enforces the Equal Employment Opportunity Commission guidelines on national origin discrimination (D.C. Mun. Regs. tit. 4, § 512.1; 29 C.F.R. § 1606).

(f) Social media

D.C. does not prohibit or otherwise regulate private-sector employers with regard to viewing social media and using information obtained for employment decisions. D.C. employers must adhere to applicable federal laws. D.C. recognizes the common law tort of invasion of privacy; thus, accessing potential employees’ social media accounts without permission as part of the hiring process could raise invasion-of-privacy questions.

(g) Other

Employers doing business in D.C. are prohibited from administering, accepting or using lie detector tests or the results of such tests in connection with their employment or hiring practices (D.C. Code Ann. § 32-902(a)).

Wage and hour

Pay
What are the main sources of wage and hour laws in your state?

Employers covered by federal and D.C. wage and hour laws must comply with whichever law confers the greater benefits on an employee.

The D.C. Minimum Wage Act applies to all individuals employed in the district. Individuals are considered employed in the district when:

  • more than 50% of their working hours are spent in the district; or
  • their employment is based in the district, they regularly spend a substantial amount of their working time there and no more than 50% of their working time is spent in any other state (D.C. Code Ann. § 32-1003(b)). 

Day laborers are covered, whether paid by the hour, the day, or at a piece rate.

The D.C. Living Wage Act 2006 established a minimum living wage and allows for annual wage adjustment for residents who work for local employers receiving economic development assistance and funding from the district government (D.C. Code Ann. §§ 2-220 et seq.).

The D.C. Wage Payment and Collection Law establishes requirements regarding the timing of wage payments, including the due date for payments to employees who are discharged or resign or quit and penalties for late payment of wages due (D.C. Code Ann. §§ 32-1303 et seq.).

The D.C. Wage Theft Prevention Amendment Act 2014 requires employers to provide a notice to each D.C.-based employee containing specific information about an employee’s terms and conditions of employment. Each notice must include:

  • the employer’s name;
  • any “doing business as” names by the employer;
  • the physical address of the employer’s main office or principal place of business;
  • the employer’s mailing address;
  • the employer’s telephone number;
  • the employee’s pay rate and the basis of that rate (e.g., by the hour, shift, day, week, salary, piece or commission);
  • any allowances claimed as part of the minimum wage (e.g., tip, meal, or lodging allowances);
  • the employee’s overtime pay rate;
  • the living wage;
  • exemptions from living wage; and
  • applicable prevailing wages.

What is the minimum hourly wage?

In December 2013 the D.C. Council unanimously passed a minimum wage rate hike to be phased in over three years and later indexed to inflation for further growth, which for the time being provides a greater minimum wage than the “federal minimum wage plus $1” formulation (D.C. Code Ann. § 32-1003(a)). As of July 1 2015 the minimum wage was set at $10.50. From July 1 2016 the D.C. minimum wage will be $11.50, or it will be set by the Fair Labor Standards Act plus $1, whichever is greater (D.C. Code Ann. § 32-1003(a)(5)). Beginning on July 1 2017, and no later than July 1 of each successive year, the minimum wage will be increased in proportion to the annual average increase, if any, in the Consumer Price Index for All Urban Consumers in the Washington Metropolitan Statistical Area, published by the U.S. Bureau of Labor Statistics, for the previous calendar year. Any increase will be adjusted to the nearest multiple of $0.05 (D.C. Code Ann. § 32-1003(a)(6)(A)).

Security officers working in an office bulding in D.C. must be paid “wages, or any combination of wages and benefits” not less than the “combined amount of the minimum wage and fringe benefit rate for the guard 1 classification established by the United States Secretary of Labor pursuant to the Service Contract Act of 1965.”

For tipped employees, D.C. employers must pay cash of at least $2.77 per hour towards the minimum wage (the federal amount is $2.13) (D.C. Code Ann. § 32-1003(f)). An employer must advise the employee of the provisions relating to determining wages based on gratuities and bears the burden of proving that the employees received gratuities at least as much as the tip credit taken (D.C. Mun. Regs. tit. 7, § 903.1).

What are the rules applicable to final pay and deductions from wages?

Deductions
While no D.C. statute regulates what an employer can and cannot deduct from an employee’s wages, under certain circumstances D.C. regulations expressly allow an employer to deduct wages from an employee for meals and lodging (D.C. Mun. Regs. tit. 7, § 904).

D.C. regulations do not prohibit employers from charging employees or requiring or permitting an employee to pay an employer directly or indirectly for breakages, walkouts, mistakes on customer checks and similar charges, or to pay fines, assessments or charges, so long as the payment does not reduce the employee’s wages below the minimum wage (D.C. Mun. Regs. tit. 7, § 915).

Final pay
Unless otherwise specified in a collective bargaining agreement, employers must pay wages that are due to a terminated employee no later than the working day following the date of termination (D.C. Code Ann. § 32-1303(1)). However, if the terminated employee was responsible for money belonging to the employer, the employee may be paid within four days of the date of termination in order to determine the accuracy of the employer’s accounts (D.C. Code Ann. § 32-1303(1)).

If an employee quits or resigns and has no employment contract for a period of more than 30 days, the employer shall pay any wages due by the next regular payday or within seven days of the date of resignation, whichever is earlier (D.C. Code Ann. § 32-1303(2)).

There is a mandatory “liquidated damages” provision for wage payment claims. Since 2013 an employer failing to timely pay wages due on termination:

“shall pay, or be additionally liable to, the employee, as liquidated damages, 10 per centum of the unpaid wages for each working day during which such failure shall continue after the day upon which payment is hereunder required, or an amount equal to treble the unpaid wages, whichever is smaller.” (DC Code 32-1303(4)).

There is no D.C. case authority interpreting the “treble damages” provision, which is susceptible to two interpretations:

  • It is an additional three times the unpaid wages on top of what is owed; or
  • It is a total of three times the unpaid wages, including what is owed.

Hours and overtime
What are the requirements for meal and rest breaks?

D.C. does not require that private employers provide employees with meal or rest breaks.

What are the maximum hour rules?

All minors (18 and under) are prohibited from working more than:

  • six consecutive days in one week;
  • 48 hours in one week; or
  • eight hours in a day (D.C. Code Ann. § 32-202). 

How should overtime be calculated?

D.C. requires that employers pay all covered employees one and a half times their regular rate of pay for all hours worked in excess of 40 hours per week (D.C. Code Ann. § 32-1003(c)). 

What exemptions are there from overtime?

The D.C. minimum wage and overtime provisions do not apply to:

  • individuals employed in executive, administrative or professional positions and persons employed as outside salespersons (D.C. Code Ann. § 32-1004(a)(1));
  • individuals who deliver newspapers directly to the homes of subscribers (D.C. Code Ann. § 32-1004(a)(2)); and
  • disabled employees holding a certificate issued by the U.S. Department of Labor that authorizes specific wage payments under section 214(c) of the Fair Labor Standards Act (D.C. Code Ann. § 32-1003(d)).

The minimum wage provisions do not apply in the following instances where other laws or regulations establish minimum rates:

  • for disabled individuals at a rate no less than the minimum wage, except in those instances where a certificate has been issued by the U.S. Department of Labor that authorizes a lesser payment to disabled workers under the Fair Labor Standards Act (D.C. Mun. Regs. tit. 7, § 902.4(a));
  • for individuals employed under the Job Training Partnership Act (D.C. Mun. Regs. tit. 7, § 902.4(b));
  • for individuals employed under the Older Americans Act (D.C. Mun. Regs. tit. 7, § 902.4(c));
  • for individuals employed under the Youth Employment Act (D.C. Mun. Regs. tit. 7, § 902.4(d));
  • for students employed by institutions of higher learning (D.C. Mun. Regs. tit. 7, § 902.4(f)); and
  • for minors under the age of 18 (D.C. Mun. Regs. tit. 7, § 902.4(g)).

The D.C. overtime provisions do not apply to the following classifications:

  • seafarers (D.C. Code Ann. § 32-1004(b)(1));
  • railroad employees (D.C. Code Ann. § 32-1004(b)(2));
  • any salesperson, parts-person or mechanic primarily engaged in selling or servicing automobiles, trailers or trucks if employed by a non-manufacturing establishment primarily engaged in the business of selling these vehicles to end-purchasers (D.C. Code Ann. § 32-1004(b)(3));
  • parking lot or garage attendants (D.C. Code Ann. § 32-1004(b)(5));
  • individuals employed by an air carrier and who may voluntarily exchange working days with another employee for the primary purpose of utilizing air travel benefits available to these employees (D.C. Code Ann. § 32-1004(b)(6));
  • individuals employed by a retail or service establishment where the regular rate of pay of the employee is in excess of one and a half times the minimum hourly rate of the employee, and more than half of the employee’s compensation for a representative period (not less than one month) represents commissions on goods or services (D.C. Code Ann. § 32-1003(e); and
  • private household workers who live on the employer’s premises and individuals employed as companions for the aged or infirm (D.C. Mun. Regs. tit. 7, § 902.5).

Record keeping
What payroll and payment records must be maintained?

D.C. employers are required to maintain a variety of wage, hour and payroll records for a minimum of three years, including the following employee information:

  • full name, occupation and social security number;
  • address, including zip code; and
  • date of birth (D.C. Code Ann. § 32-1008; D.C. Mun. Regs. tit. 7, § 911).

Employers must also retain records for a minimum of three years of:

  • employees’ regular hourly wages;
  • hours worked each day and workweek;
  • a daily record of start and finish times (including meal break times if the employee works a split shift);
  • total daily or weekly straight-time earnings and excess overtime earnings for the week, or total earnings for non-overtime and overtime hours worked during the week;
  • total gross and net wages paid each period, and any deductions and additions;
  • date of payment and pay period covered; and
  • application of tips to minimum wages for tipped employees (D.C. Code Ann. § 32-1008; D.C. Mun. Regs. tit. 7, § 911). 

D.C. employers must further retain records (for a minimum of three years) regarding the time of day and day of the week that the working week begins and the basis on which wages are paid (D.C. Code Ann. § 32-1008; D.C. Mun. Regs. tit. 7, § 911).

Discrimination, harassment and family leave

What is the state law in relation to:
Protected categories

(a) Age?

The D.C. Human Rights Act expressly prohibits employment discrimination based on age for those 18 and above (D.C. Code Ann. § 2-1402.11(a)). 

(b) Race?

The D.C. Human Rights Act prohibits employment discrimination based on race or color (D.C. Code Ann. § 2- 1402.11(a)). D.C. has adopted the Equal Employment Opportunity Commission’s regulations interpreting Title VII, and thus decisions reached under federal law provide guidance as to how the district’s courts generally apply the act.

(c) Disability?

The D.C. Human Rights Act prohibits employers from discriminating against employees or job applicants because of a disability (D.C. Code Ann. § 2-1402.11(a)).

(d) Gender?

Sex discrimination, for purposes of the D.C. Human Rights Act, includes gender discrimination, pregnancy discrimination and sexual harassment. D.C. has adopted the Equal Employment Opportunity Commission’s guidelines governing sex discrimination (D.C. Mun. Regs. tit. 4, § 517.1; 29 C.F.R. § 1604).

(e) Sexual orientation?

A D.C. employer cannot discharge, suspend or refuse to hire or promote an individual—or subject an individual to different terms, conditions and privileges of employment—because of the individual’s sexual orientation, open or suspected, or non-conformity to the stereotyped characterization of masculine or feminine behavior. All employees are subject to the same standards of acceptable on-the-job conduct and the same standards for discipline and dismissal (D.C. Mun. Regs. tit. 4, §§ 517.1‑.3).

(f) Religion?

An employer must make efforts to reasonably accommodate an employee’s desire to engage in religion and religious observances. The employee must notify the employer at least 10 working days in advance of a request for time off to participate in a religious activity, unless the employee could not reasonably foresee the need for the accommodation (D.C. Code Ann. § 2-1402.11(c)(4)).

The Office of Human Resources and the Center for Human Resources have adopted and incorporated by reference the Equal Employment Opportunity Commission guidelines on religious discrimination (D.C. Mun. Regs. tit. 4, § 516.1; 29 C.F.R. § 1605).

(g) Medical?

D.C. Employers are prohibited from discriminating against employees and applicants based on a number of categories, including pregnancy, disability, and genetic information (D.C. Code Ann. § 1402.11(a)-(c)). Regulations prohibit employers from using an individual’s family medical history in making employment decisions (D.C. Mun. Regs. tit. 4, § 509.1-509.2(f)). Employers cannot request information about an individual’s family medical history (D.C. Mun. Regs. tit. 4, § 509.2(e)).

(h) Other?

National origin
The Office of Human Resources and the Center for Human Resources will enforce the Equal Employment Opportunity Commission guidelines on national origin discrimination (D.C. Mun. Regs. tit. 4, § 512.1; § 1606).

Pregnancy discrimination
The D.C. Human Rights Act requires that a pregnant woman be granted the same fringe benefits as non-pregnant employees, insofar as they are similarly able or unable to work (D.C. Code Ann. § 2-1401.05). A woman may not be rejected for employment, discharged, or forced to take leave solely because of her pregnancy (D.C. Mun. Regs. tit. 4, § 516.4). Amendments to the act make discrimination on the basis of pregnancy as unlawful as constituting marital status discrimination (D.C. Code Ann. § 2-1401.05).

Protecting Pregnant Workers Fairness Act 2014
Applying to all D.C. employers regardless of size, this act requires employers to engage in the interactive process with any employee requesting or otherwise needing a reasonable accommodation on the basis of a pregnancy or childbirth-related condition, unless doing so would create undue hardship on the employer. Employers cannot refuse to make reasonable accommodations without demonstrating undue hardship and cannot take adverse employment actions against an employee who requests or uses reasonable accommodation. Employers are prohibited from requiring an employee to accept unnecessary accommodation or to take leave if reasonable accommodation can be provided instead (D.C. Code Ann. § 32-1231.01 to D.C. Code Ann. § 32-1231.15).

Gender identity or expression
Gender identity or expression is a D.C. Human Rights Act-protected class defined as “a gender-related identity, appearance, expression or behavior of an individual regardless of the individual’s assigned sex at birth” (D.C. Code Ann. § 2-1401.02).

Marital status
An employer must not consider marital status when reaching decisions regarding recruitment, job classification, promotion, compensation, layoff or other terms and conditions of employment. Employment applications must not contain inquiries pertaining solely to marital status, unless the employer can demonstrate a business necessity for the inquiry (D.C. Mun. Regs. tit. 4, § 510.1‑.3). Pregnancy and parenthood are considered “usual conditions” of a person’s marital status; employers cannot therefore discriminate on these grounds (D.C. Code Ann. § 2-1401.02(17)).

Personal appearance
An employer must not discriminate against an individual in recruitment, hiring or promotion on the basis of the individual’s personal appearance (D.C. Code Ann. § 2-1401.02(21)). 

Matriculation
Employers must not discriminate against employees or job applicants on the basis of an individual’s matriculation, which is “the condition of being enrolled in a college, or university; or in a business, nursing, professional, secretarial, technical or vocational school; or in an adult education program” (D.C. Code Ann. §§ 2-1401.11(a)(1), 2-1401.02(18)).

Family responsibilities/familial status
An employer must not discriminate against an individual because his or her wages are garnished for child support (D.C. Code Ann. § 2-1401.02(12)). “Familial status” refers to an individual who is a parent or has legal custody of a child under the age of 18. Individuals who are pregnant or who are seeking to obtain legal custody of a minor are also afforded protection against discrimination (D.C. Code Ann. § 2-1401.02(14)). Family responsibilities are not job related and thus should not be a factor in employment decisions (D.C. Mun. Regs. tit. 4, § 508.1).

Political affiliation
An employer must not refuse to hire an individual, or discriminate against an employee, because of the person’s present or past participation in a political organization or lack thereof (D.C. Mun. Regs. tit. 4, § 515.1). Even membership in a political party that has unlawful goals does not justify employment discrimination, unless prohibition is required by federal or district law (D.C. Mun. Regs. tit. 4, § 515.2).

Genetic information
The D.C. Human Rights Act was amended to prohibit genetic discrimination by employers, employment agencies and labor organizations. Employers cannot request or require a genetic test as a condition of employment (D.C. Code Ann. § 2-1402.11). Regulations prohibit employers from using an individual’s family medical history in making employment decisions or requesting information about an individual’s family medical history. 

Source of income
The D.C. Human Rights Act prohibits discrimination based on a person’s source of income, however derived, so long as no conflict of interest exists (D.C. Code Ann. §§ 2-1401.01, 2-1401.02(29)).

Place of residence or business
The D.C. Human Rights Act prohibits discrimination based on a person’s place of residence or business (D.C. Code Ann. § 2-1401.01).

Status as a victim of intra-family offense
The D.C. Human Rights Act prohibits discrimination based on a person’s status as a victim of an intra-family offense (D.C. Code Ann. §§ 2-1401.01, 2-1401.02(14A). “Intra-family offense” is defined as “interpersonal, intimate partner, or intrafamily violence” (D.C. Code Ann. § 16-1001(8)). “Intra-family violence” is defined as an act punishable as a criminal offense that is committed or threatened to be committed by an offender upon a person to whom the offender is related by blood, adoption, legal custody, marriage, or domestic partnership, or with whom the offender has a child in common (D.C. Code Ann. § 16-1001(9)).

Harassment
What is the state law in relation to harassment?

Employers are prohibited from fostering or supporting a hostile, intimidating or offensive work environment. It is unlawful for an employer or employee to condition the status of another’s employment on that person’s willingness to engage in sexual activity, whether on or off the job (D.C. Mun. Regs. tit. 4, § 517.8).

Family and medical leave
What is the state law in relation to family and medical leave?

D.C. provides eligible employees with the right to take 16 weeks of unpaid family leave and 16 weeks of unpaid medical leave in any 24-month period (D.C. Code Ann. §§ 32-501 et seq). A private employer is covered if it employs 20 or more employees on the payroll during 20 or more weeks in the current or preceding calendar year. Joint employers may also be responsible for providing leave (D.C. Mun. Regs. tit. 4 §1601.1).

D.C. regulations require employers to maintain extensive records regarding leave requests, costs, employer decisions, and leave taken (D.C. Mun. Regs. tit. 4, § 1617.5).

Earned Sick and Safe Leave Amendment Act 2013

The central requirement to provide paid sick and safe leave to eligible employees varies based on employer size, as follows:

  • 100 or more employees – one hour of paid leave for every 37 hours an employee works, not to exceed seven days a year (D.C. Code Ann. § 32-131.02(a)(1));
  • 25 to 99 employees – one hour of paid leave for every 43 hours an employee works, not to exceed five days a year; and
  • Less than 25 employees – one hour of paid leave for every 87 hours an employee works, not to exceed three days a year (D.C. Code Ann. § 32-131.02(a)(1)-(3)). 

The 2013 law expanded the group of covered workers to include tipped restaurant employees and temporary workers, regardless of the employer’s size. The accrual provisions of the law are retroactive to February 22 2014.

The following individuals are not covered:

  • volunteers for educational, charitable, religious or non-profit organizations;
  • certain elected or appointed officers of religious organizations;
  • casual babysitters;
  • independent contractors;
  • students; and
  • healthcare workers who participate in premium pay programs (D.C. Code Ann. § 32- 131.01(2)).

The revised law also creates an incredibly broad presumption that an employer has violated the law if an employee suffers an adverse employment action within 90 days of engaging in protected activity, including by taking paid leave (D.C. Code Ann. § 32- 131.08(d)).

Privacy in the workplace

Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?

D.C. does not prohibit employers from investigating or monitoring current employees or employee use of company-owned devices and networks.

Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

No D.C. law prohibits employers from monitoring employees’ use of social media sites. 

Bring your own device
What is the latest position in relation to bring your own device?

D.C. has no specific position on this issue.

Off-duty
To what extent can employers regulate off-duty conduct?

D.C. recognizes the common law tort of invasion of privacy and employers should thus be mindful of unreasonably monitoring their employees’ off-duty conduct.

D.C. prohibits discrimination against employees or applicants who are smokers and tobacco users (D.C. Code Ann. § 7-1703.03(a)).

Gun rights
Are there state rules protecting gun rights in the employment context?

Employers that own property in D.C. may prohibit or restrict the possession of firearms on their property (D.C. Code Ann. § 22-4503.02(b)). 

Trade secrets and restrictive covenants

Intellectual Property
Who owns IP rights created by employees during the course of their employment?

As a general rule, an employer will have ownership rights to intellectual property created by its employees in the course of their employment. If intellectual property is created by an employee outside the course of his or her employment, the employee maintains the ownership rights.

Restrictive covenants
What types of restrictive covenants are recognized and enforceable?

D.C. has not hesitated to enforce non-competition agreements that are narrowly tailored to protect an employer’s legitimate business interests. An enforceable restriction must be reasonable as to time and area, necessary for the protection of the employer, and intended and agreed on by the employer. Non-competition agreements must be supported by adequate consideration, which exists when someone who gives up a legal right obtains a tangible benefit in return.

Non-compete
Are there any special rules on non-competes for particular classes of employee?

No.

Labor relations

Right to work
Is the state a “right to work” state?

No.

Unions and layoffs
Is the state (or a particular area) known to be heavily unionized?

Union membership in D.C. falls below the national average. In 2014 8.6% of the D.C. workforce belonged to a union, compared to the national average of 11.1%.

What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?

D.C. has no law regulating plant closures or layoffs. However, the federal Worker Adjustment and Retraining Notification Act applies.

Discipline and termination

State procedures
Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

No.

At-will or notice
At-will status and/or notice period?

Unless the employment relationship is otherwise governed by an employment contract, D.C. employees are employed at will and can be terminated at any time without notice or without cause, as long as the termination is not otherwise unlawful.

What restrictions apply to the above?

D.C. prohibits employers from discharging an employee because of:

  • membership in a protected class;
  • engagement in a statutorily protected activity;
  • filing or reporting a complaint regarding a workplace health or safety violation; or
  • refusal to perform an act that violates some clearly articulated public policy (this is a narrow exception).

Final paychecks
Are there state-specific rules on when final paychecks are due after termination?

D.C. does not specifically require employers to provide specific documentation to terminated employees. However, the district generally requires that employers pay involuntary terminated employees’ final wages within one working day of discharge (D.C. Code Ann. § 32-1303).

Unless otherwise specified in a collective bargaining agreement, employers must pay wages that are due to a terminated employee no later than the working day following the date of termination (D.C. Code Ann. § 32-1303(1)). However, if the terminated employee was responsible for money belonging to the employer, the employee may be paid within four days of the date of termination in order to determine the accuracy of the employer’s accounts (D.C. Code Ann. § 32-1303(1)).

If an employee quits or resigns and has no employment contract for a period of more than 30 days, the employer shall pay any wages due by the next regular payday or within seven days of the date of resignation, whichever is earlier (D.C. Code Ann. § 32-1303(2)).