A number of new laws impacting employers in the District of Columbia recently have become effective. Information regarding these new employer obligations can be found below.
Wage Theft Prevention Act
Washington, DC's Wage Theft Prevention Act (the Act) became effective on February 26, 2015. The various requirements employers must now meet are described below.
Effective immediately, employers must provide all new employees (both exempt and nonexempt) with the information described below, and must provide this information to all current employees (both exempt and nonexempt) on or before May 27, 2015.
- The employer's name and any related "doing business as" names;
- The address and telephone number for the employer’s main office or principal place of business;
- Employee's regular pay rate and the basis for the rate (whether it is calculated by the hour, shift, day or week, or on a salary, piece or commission basis);
- The overtime rate of pay;
- Exemptions from overtime; and
- The employee's regular payday.
This information also must be provided to employees when any information regarding the employer or the employee's compensation changes.
The Mayor's office has released a template notice, which can be located on the DC Department of Employment Services website. The Mayor also may issue template notices in languages other than English. If these templates are produced and the employer is aware that an employee's primary language is one of the languages in which additional notices are available, the employer will be required to issue the notice in both English and the employee's primary language.
Wage Payment Requirements
Additionally, the Act governs the timing of an employee's final paycheck. The new law requires that, if an employer terminates an employee, the employer must issue payment for final wages the day after termination. If an employee resigns, the employer must issue payment for final wages either on the next regularly scheduled payday or within seven days after the resignation, whichever is earlier. Thus, if employees are paid biweekly or monthly, employers should be mindful of this seven-day final wages requirement.
The Act also requires wage payments to be issued to employees (exempt and nonexempt) at least on a biweekly basis, unless the employer has an agreement with employees for monthly compensation or has typically compensated employees on a monthly basis.
Timekeeping Records Requirements
The Act requires that employers keep records of the precise time worked each day by nonexempt employees. Previously, employers only were required to keep records of the hours worked each day, rather than the precise time worked each day by nonexempt employees. The Act originally included this requirement for exempt employees, but this requirement was eliminated in one of the amendments to the Act.
Employers also will be required to post a standard notice in the workplace regarding these obligations. This posting has not yet been issued by the City, but when available will appear on the Department of Employment Services website referenced above.
Wage Transparency Act
Washington, DC's Wage Transparency Act became effective on March 11, 2015. While this act largely overlaps with the rights of employees that are protected by the National Labor Relations Act, the rights described below apply to all employees (rank-and-file and managers alike), rather than to only the rank-and-file employees protected by the National Labor Relations Act.
The Wage Transparency Act prohibits employers from placing limits on employees' ability to discuss their wages with other employees, and makes unlawful retaliation against employees who exercise their rights to freely discuss their wages. Specifically, employers may not:
- Require, as a condition of employment, that an employee refrain from inquiring about, disclosing, comparing or otherwise discussing the employee's wages or the wages of another employee;
- Discharge, discipline, interfere with or otherwise retaliate against an employee who inquires about, discloses, compares or otherwise discusses the employee's wages or the wages of another employee or is believed by the employer to have done so; or
- Prohibit or attempt to prohibit an employee from lodging a complaint, or testifying, assisting or participating in an investigation or proceeding, related to a violation of this Act.
The Wage Transparency Act does not require employers to disclose to any employee information regarding other employees' wages, nor does it require employees to disclose to other employees information regarding their or other employees' wages. Additionally, employers are allowed to prohibit employees with access to employee wage data (such as human resources employees) from sharing such information with other employees.
Protecting Pregnant Workers Fairness Act
Effective March 3, 2015, Washington, DC's Protecting Pregnant Workers Fairness Act (PPWFA) requires employers to provide reasonable accommodations to pregnant employees along the lines of those required by the Americans with Disabilities Act (ADA) to disabled employees. While pregnancy is still not considered a disability under the ADA, the PPWFA treats pregnancy like other disabilities for purposes of an employer’s reasonable accommodation obligations.
The PPWFA places the same burden on the employer as under the ADA to show undue hardship when failing to provide an accommodation to a pregnant employee. Thus, employers should engage in the same interactive process with pregnant employees who request an accommodation as they engage in with disabled employees requiring an accommodation.
Additionally, employers are required to post in the workplace information regarding employees' rights under the PPWFA, and provide pregnant employees with written notice of their rights under the PPWFA within 10 days after the employee notifies the employer of her pregnancy. Model postings and notice documents likely will be released by the Mayor's office. The Mayor’s office also is expected to publish rules and procedures regarding the PPWFA in May 2015.
Fair Criminal Record Screening Act
Washington, DC's Fair Criminal Record Screening Act (FCRSA) became effective on December 17, 2014.
Under the FCRSA, employers are prohibited from requesting from an applicant information regarding the applicant's arrest record or regarding any criminal accusations made against the applicant, although employers may still inquire regarding pending criminal charges.
The FCRSA also limits employers' ability to make inquiries regarding an applicant’s criminal convictions and governs when criminal convictions can impact hiring decisions.
Employers may inquire regarding an applicant's criminal convictions only after the employer has made a conditional employment offer to the applicant. (Note: if other local, state or federal laws require consideration of criminal history as a requirement for a specific job, employers are exempted from the FCRSA's conditional offer requirement.) Only if legitimate business purposes support the revocation of an employment offer based on the information received regarding the applicant's criminal convictions may the employer withdraw its conditional offer to the applicant.
The DC Office of Human Rights has offered guidance regarding the factors employers should consider before making an adverse hiring decision based on an applicant's criminal history:
- specific duties and responsibilities necessarily related to the employment;
- fitness or ability of the person to perform one or more job duties or responsibilities given the offense;
- time elapsed since the occurrence of the offense;
- age of the applicant when the offense occurred;
- frequency and seriousness of the offense; and
- information provided by applicant or on his or her behalf that indicates rehabilitation or good conduct since the offense occurred.
If, after reviewing an applicant's criminal history in light of the potentially mitigating factors above, an employer withdraws an applicant's job offer, the employer must provide the applicant with notice of the applicant's right to file a complaint with the DC Office of Human Rights. This notice can be found on the DC Office of Human Rights website.
Additionally, applicants are allowed to request records obtained and considered by the employer regarding the applicant's criminal history.
Prohibition of Pre-Employment Marijuana Testing Act
Washington, DC's Prohibition of Pre-Employment Marijuana Testing Temporary Act (Temporary Act) was passed as a placeholder protection for employers while the DC City Council considers permanent legislation on this issue. An emergency version of the law had been previously passed and became effective immediately, until the Temporary Act could be passed. Thus, even though the Temporary Act is not yet in effect, the restrictions outlined below already are in effect under the emergency legislation.
Under the Temporary Act, employers only may test an applicant for marijuana use after the employer has made a conditional employment offer to the applicant. However, when other local, state or federal laws require drug testing as a requirement for a specific job, employers are exempted from the Temporary Act’s conditional offer requirement.
The Temporary Act does not prevent employers from withdrawing a conditional offer of employment if an applicant tests positive for marijuana use. Similarly, employers remain free to maintain and enforce drug-free workplace policies.
Handguns in the Workplace
Pursuant to amendments to Washington, DC's Firearms Control Act, as of January 20, 2015, a legal presumption exists that private commercial property owners will allow firearms on their premises unless the property owner posts "conspicuous signage prohibiting firearms" or otherwise communicates such information personally to an individual with a license to carry a firearm.
Thus, if employers wish to prohibit employees from bringing firearms to work, we advise including this prohibition in the employee handbook and—where appropriate—posting signage at the entrance of facilities banning firearms on-site.