Alert
Alert
02.09.15
This material was also published as a bylined article on Law360 on February 23, 2015.
District of Columbia employers now face and are soon to face a number of new laws affecting a wide range of issues, including wage payments, recording of hours worked, pregnancy accommodations, concealed weapons in the workplace, and the use of criminal background checks and drug testing during the hiring process. While most of the changes impose new requirements on employers, emergency legislation passed by the D.C. Council on February 3rd also contained a win for employers by changing existing D.C. law that had previously required that employers keep records of hours worked by both exempt and non-exempt employees. Employers must be aware of these new requirements, some of which require employers to change their current practices, and should carefully review their employee handbooks and other policies to ensure timely compliance.
The D.C. Wage Theft Prevention Amendment Act of 2014, which is currently expected to become effective on February 26, 2015, following Congressional review, has already proven to be one of the most significant and controversial new laws affecting D.C. employers in recent memory. Fortunately, in response to urging by employer groups, on February 3, 2015, the D.C. Council took emergency action to scale back its most burdensome provisions.
The Amendment Act, in its original form, amended in a number of critical ways several of D.C.’s existing employment statutes, included the D.C. Wage Payment and Collection Act, the D.C. Minimum Wage Act, the D.C. Living Wage Act, and the D.C. Accrued Sick and Safe Leave Act. (Provisions of the Amendment Act which have been modified by the emergency action of the D.C. Council are in bold below.) In addition to adding provisions relating to enforcement procedures for those laws, the Amendment Act included provisions:
These notices are to be provided to employees in both English and in each employee’s primary language.
D.C. employers objected to several of the provisions as burdensome and unnecessary for the protection of employees. In particular, many employers—and many exempt employees—were concerned about the requirement that employers keep records of the “precise hours worked” for all employees, as this would require professional, executive and other exempt employees to keep daily timesheets recording start and stop times for their work throughout the day. While records of the length of meal and other breaks may be relevant for non-exempt employees in determining total wages and overtime payments due, such precise time-tracking for exempt employees would impose a burden with no countervailing benefit.
Fortunately, the D.C. Council recognized the unnecessary burden the Amendment Act had placed on employers and, at the Mayor’s request, passed on February 3, 2015, temporary legislation—both the Wage Theft Prevention Clarification Temporary Amendment Act of 2015 (Temporary Amendment Act) and the Wage Theft Prevention Clarification Emergency Amendment Act of 2015 (Emergency Amendment Act)—that modified key aspects of the Amendment Act:
The substantive provisions of the Temporary Amendment Act and the Emergency Amendment Act parallel each other. Any non-emergency legislation in D.C. requires Congressional review, however. The Emergency Amendment Act will remain in effect for 90 days following its still-to-be-determined effective date, which allows time for Congressional review of the Temporary Amendment Act. Following Congressional review, the Temporary Amendment Act will remain in effect for 225 days, giving the D.C. Council time to draft, pass, and submit for Congressional review a permanent version of these bills. As of the date of publication of this Client Alert, Mayor Muriel Bowser has not yet signed these bills, but she expressed support for them prior to the D.C. Council’s February 3rd meeting.
Significantly, the emergency legislation not only lifts the timekeeping burden for exempt employees that the Amendment Act would have imposed, but also rescinds the already existing requirement that D.C. employers record the “hours worked” (but not the “precise time worked”) for all employees, whether exempt or non-exempt. The D.C. Minimum Wage Law had, even prior to enactment of the Amendment Act, already included a provision, in D.C. Code § 32-1008(a)(1)(D), that required employers to “make, keep, and preserve” for at least three years a record of “the hours worked each day and each workweek by each employee,” with no exclusion for salaried exempt employees. The Emergency and Temporary Amendment Acts replace the Subparagraph D provision with a requirement that employers record the “precise time worked … except for employees who are exempt from the minimum wage and overtime requirements.”
Except as modified by the Temporary and Emergency Amendment Acts, the other provisions of the Amendment Act will become law—absent Congressional action—on February 26, 2015, and employers should take immediate steps to ensure timely compliance with the new requirements. For some employers, this may entail updating their current timekeeping rules and procedures so that their non-exempt employees can clock in and out when they start and stop work throughout the day.
The Wage Transparency Act of 2014
Under the Wage Transparency Act of 2014, employers may not (1) prohibit employees from inquiring about, discussing, comparing, or otherwise discussing their wages or the wages of another employee, (2) discharge, disciple, interfere with, or otherwise retaliate against an employee who inquires about, discloses, compares, or otherwise discusses the employee’s wages or the wages or another employee, or is believed by the employer to have done so; or (3) 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. Employers may, however, prohibit an employee with regular access to information regarding the wages of other employees, such as an HR or payroll employee, from sharing such information, unless there is a legal obligation to furnish the information. This Act is expected to clear the 30-day congressional review period and become law on March 11, 2015. This new D.C. law is similar to President Obama’s Executive Order 13665, which applies to federal contractors and subcontractors.
Download: The Legal Landscape Rapidly Changes for D.C. Employers