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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).
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.
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
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?
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).
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).
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).