In the rush of the holiday season, activity by federal lawmakers might have gone unnoticed. In the dawn of 2015, however, Washington, DC employers have woken to a series of new obligations and restrictions.
The Wage Theft Prevention Amendment Act of 2014 (A20-426) – projected to go into effect February 26, 2015, pending Congressional approval – and the Fair Criminal Record Screening Amendment Act of 2014 will mean a sea change for Washington, DC employers, who should batten down the hatches by reviewing their employment practices to comply with inevitable alterations in their day-to-day policies and practices.
Going forward, employers will be limited as to their use of applicants’ criminal record information, required to provide notices to new and existing employees, maintain precise timekeeping requirements for non-exempt and exempt employees, and ensure that timing of employees’ wage payments are timely.
Below is a summary of the key changes.
WAGE THEFT PREVENTION AMENDMENT ACT OF 2014
Timekeeping. Currently, the DC Minimum Wage Act Revision of 1992 (MWPRA) provides that every covered employer in Washington, DC is required to maintain the following records for three years:
- The name, address and occupation of each employee
- A record of the date of birth of any employee under 19 years of age
- The rate of pay and the amount paid each pay period to each covered employee
- The hours worked each day and each workweek by each covered employee and
- Any other records or information as the District’s Mayor shall prescribe by regulation as necessary or appropriate for the enforcement of the provisions of this subchapter or of the regulations issued under this subchapter.
The Wage Theft Prevention Amendment Act amends this above section to state that the above records must be maintained at least three years, unless the federal government has a greater prevailing standard. It also amended Section (D) to require that employers now record “precise time worked.”
Accordingly, employer records going forward should include a detailed time record (i.e.: 8:32 am to 12:01 pm; 12:30 pm to 5:55 pm.). And, as currently drafted, the Wage Theft Prevention Amendment Act will require precise timekeeping for all employees, exempt and non-exempt.
Groups have been fairly vocal about the idea of having to track exempt employees’ hours, which is a significant departure from how most employers currently administer recordkeeping for exempt employees. Just recently, the DC Chamber of Commerce released a memo discussing the most cumbersome areas of the Act.
Notices to new hires and existing employees. If the Wage Theft Prevention Amendment Act goes into effect, the Minimum Wage Act will also be revised to require employers to now provide the following information to (i) each employee at the time of hire, (ii) to every existing employee within 90 days of the Wage Theft Prevention Act’s effective date and (iii) to an existing employee whenever the information changes:
- 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, commission, any allowances claimed as part of the minimum wage, including tip, meal, or lodging allowances, or overtime rate of pay, exemptions from overtime pay, living wage, exemptions from the living wage, and the applicable prevailing wages, or
- The employee’s regular payday designated by the employer.
Employers must provide this information in writing, in both English and the employee’s primary language. Employers should retain proof of compliance by retaining copies of the written notice that are signed and dated by both the employer and the employee acknowledging receipt, and also post a notice of the Wage Theft Prevention Amendment Act of 2014 within 60 days of the effective date.
Timing of payment for exempt employees. DC’s Wage Payment and Wage Collection Law currently states: “Every employer shall pay all wages earned to his employees at least twice during each calendar month, on regular paydays designated in advance by the employer.” The definition of “employee,” however, excluded exempt employees, allowing employers to pay exempt employees on a different schedule than their non-exempt colleagues. However, the Wage Theft Prevention Amendment Act of 2014 strikes that exception, so that, once the Act goes into effect, employers will have to pay all employees – both exempt and non-exempt - twice each calendar month.
Contractor relationships and temporary staffing firms. The Wage Theft Prevention Amendment Act of 2014 asserts joint and several liability on both contractors/subcontractors and temporary staffing firms/company employers for violations of DC’s Wage Payment and Wage Collection Law, the Living Wage Act, the Minimum Wage Revision Act and the Accrued Sick and Safe Leave Act. Accordingly, if an employer does engage subcontractors or a temporary staffing firm, it may want to include an indemnification provision to protect against the unlawful employment acts of a third-party.
DC Accrued Sick and Safety Leave Act of 2008 recordkeeping. Since the Wage Theft Prevention Amendment Act of 2014 will allow for an action to be filed within three years of the events on which a complaint is based, employers should retain a record of all hours worked and paid leave taken for at least three years. As is the theme of the Act, this new record retention schedule would apply to both exempt and non-exempt employees.
DC FAIR CRIMINAL RECORD SCREENING AMENDMENT ACT OF 2014
The second major change for DC employers is the DC Fair Criminal Record Screening Amendment Act of 2014, which became effective December 17, 2014. The law restricts employers’ use of criminal information to screen job applicants. The law applies to all employers with 11 or more employees and governs applicants who are, or who request to be, considered for a job that is wholly or substantially located in the District of Columbia. Interestingly, the definition of “employment” is exceptionally broad and includes temporary workers, contract workers, and even those participating in vocational or educational training – with or without pay (yes, it would even apply to interns).
During the application or interview process, the law prohibits employers from asking applicants about (i) arrests or (ii) a criminal accusation made against the applicant, which is not then pending against the applicant or did not result in a conviction.
Employers are permitted to ask about criminal convictions, but only after extending a conditional offer of employment (the employer may never ask about arrests or criminal accusations that aren't pending). An employer who properly asks about a criminal conviction can only withdraw the offer or take adverse action against the applicant for a legitimate business reason that is reasonable in light of the following six factors:
- The specific duties and responsibilities necessarily related to the employment sought or held by the applicant
- The bearing, if any, of the criminal offense for which the applicant was previously convicted will have on his or her fitness or ability to perform one or more such duties or responsibilities
- The time which has elapsed since the occurrence of the criminal offense
- The age of the applicant at the time of the occurrence of the criminal offense,
- The frequency and seriousness of the criminal offense and
- Any information produced by the applicant, or produced on his or her behalf, in regard to his or her rehabilitation and good conduct since the occurrence of the criminal offense
If an applicant believes that a conditional offer was terminated or an adverse action was taken against the applicant on the basis of a criminal conviction, the applicant may request, within 30 days after the termination or adverse action, that the employer provide the applicant within 30 days after the receipt of the request:
- A copy of any and all records procured by the employer in consideration of the applicant, including criminal records, and
- A notice that advises the applicant of his or her opportunity to file an administrative complaint with the Office of Human Rights.
The DC Office of Human Rights provides a host of resources for employers on this new law.