Today, the highly anticipated – and already twice-amended – D.C. Wage Theft Prevention Amendment Act (the “Act”) goes into effect for Washington, D.C. employers. In November 2014, then-D.C. Mayor Vincent Gray, signed the Act, which includes, among other things, a new pay notice requirement, increased penalties and damages for violating various D.C. employment laws, and an expedited administrative enforcement process that employees can utilize instead of bringing a civil action. Our previous blog posts on the Act and its amendments can be found here, here, and here.
Now that the Act has become law, D.C. employers need to know about the new requirements imposed upon them, particularly given the amendments made to the Act since it was originally signed by the Mayor.
Some key provisions of the Act are summarized below:
New Pay Notice Requirements
Within 90 days of today (the Act’s effective date), employers must provide every employee with written notice containing the following information:
- The name of the employer and any “other names used by the employer (i.e., official corporate names or trade names);
- 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, any allowances claimed as part of the minimum wage, overtime rate of pay, exemptions from overtime pay, living wage, 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.
The Mayor is supposed to issue a template notice within 60 days of the Act’s effective date (February 26, 2015).
The original Act required employers to provide the notice in the employee’s primary language. Thankfully, this potentially burdensome and logistically difficult requirement was amended by the D.C. Council through an emergency piece of legislation. Accordingly, now employers only have to provide pay notices in an employee’s primary language if the employer knows the employee has a primary language other than English, or the employee requests the notice in another language, and the Mayor has prepared a template notice in that language.
Employers must also provide amended notices to employees any time any of the above information is changed (including, but not limited to, any time an employee’s rate of pay increases or decreases).
All notices must be signed and dated by the employer and the employee. Employers must retain copies of the signed notices as proof of compliance. Employers that fail to comply with the Act’s notice requirements are subject to civil fines of $500 per employee.
Expanded Scope and Penalties of Other D.C. Employment Laws
The Act also amends the Wage Payment and Wage Collection Law (“WPWCL”) (D.C. Code §§ 32-1301, et seq.), the Living Wage Act (“LWA”) (D.C. Code §§ 2-220.01, et seq.), the Minimum Wage Revision Act (“MWRA”) (D.C. Code §§ 32-100, et seq.), and the Accrued Sick and Safe Leave Act (“ASSLA”) (D.C. Code §§ 32-131.01, et seq.) in a number of respects.
With respect to the WPWCL, the Act requires that employee employers record the “precise time worked each day and each workweek by each” employee. Additionally, the Act requires that employers pay all non-exempt employees twice per month. The original version of the Act imposed these requirements on all employees, including exempt employees. The D.C. Council’s emergency amendments to the Act have clarified that these requirements apply only to non-exempt employees.
Additionally, the Act imposes joint and several liability on general contractors for violations of the above-noted laws by their subcontractors, including failure to properly pay wages. It also imposes joint and several liability on employers for any violations by temporary staffing agencies they may use. The Act’s amendments provide a very limited exception to these impositions of automatic liability in circumstances where the contract between the general contractor and subcontractor, or between the employer and temporary staffing agency explicitly provides otherwise and the contract was in effect prior to the effective date of the Act (February 26, 2015).
Under the Act, there is also a new detailed administrative process for pursuing complaints under the MWRA, the LWA, the ASSLA and the WPWCL. This process, which is meant to be fast-tracked, is not subject to appeal on the merits, and has the potential to be burdensome and invasive for employers.
If the administrative process is not utilized, the Act expands the civil action provision in the WPWCL to claims brought under the MWRA, ASSLA and the LWA. Prevailing parties are currently entitled to attorneys’ fees, costs and appropriate legal and equitable remedies, including back pay and reinstatement. As a result of the Act, liquidated damages under the MWRA have increased to three times the amount of unpaid wages.
The Act will also make it easier to pursue class-wide relief by defining “similarly situated” employees as two or more persons who are employed by the same employer at some point during the applicable statute of limitations period, who allege one or more violations that raise similar questions as to liability, and who seek similar forms of relief. The Act expressly provides that employees cannot be considered dissimilar because they seek different amounts in damages or have different job titles or classifications.
In addition, any business found guilty or liable in any judicial or administrative proceeding of committing or attempting to commit willful violations of these laws cannot be issued a license to do business for the three-year period following the violation.
The Act prohibits retaliating against any employee who made or is believed to have made a complaint regarding a violation of any provision of the WPWCL, MWRA or the LWA; initiates a proceeding under the Act; provides information to any government agency, or any other person regarding a violation, investigation, or proceeding under the Act or testifies regarding the same; or otherwise exercises their rights under the Act.
Retaliation is presumed to have occurred if an adverse action is taken against the employee within 90 days of the protected activity. Employees can bring a civil action or file an administrative complaint asserting a retaliation claim. Employers found liable for retaliation will be subject to a variety of penalties, including economic damages, civil penalties, liquidated damages, attorneys’ fees, and injunctive relief (including reinstatement of the complaining employee).
What Employers Should Do
Given the increased penalties provided for in the Act, Employers should make sure they are aware of the Act’s provisions and take steps to ensure they are in compliance. Some recommended actions are set forth in our client alert on the Act, available here.