New DC Employment Laws Thomas L. McCally, Esq. Equity Member,
Carr Maloney PC 2000 L Street, NW, Suite 450, Washington, DC 20036
(202) 310-5506 [email protected] Copyright 2015 by Carr Maloney
P.C. All rights reserved. No portion of this publication may be
reproduced without prior written permission. This publication and
program are intended to provide current and accurate information
about the subject matter covered. This publication as well as
orally conveyed information should not be construed as legal
advice.
Slide 2
New DC Employment Laws Wage Theft Prevention Amendment Act of
2014 (WTPAA) Protecting Pregnant Workers Fairness Act of 2014
(PPWFA) Fair Criminal Record Screening Amendment Act of 2014
(FCRSAA) Amendments to the District of Columbia Paid Sick and Safe
Leave Act ___________________________________________ How Changes
in Marijuana Laws May Impact Employers
Slide 3
Wage Theft Prevention Amendment Act of 2014 (WTPAA) The WTPAA
became effective February 26, 2015. The Act significantly modifies
District of Columbia wage laws. New Pay Notice Requirements.
Modifies Existing District of Columbia Wage Laws New Recordkeeping
and Posting Requirements New Administrative Process and Increased
Penalties New Retaliation Provision
Slide 4
New Pay Notice Requirements The Act requires employers to
provide specific written notice to employees regarding wages.
Effective immediately, employers must provide the required notice
to all new employees when they are hired, in English and in the
employees primary language. Additionally, employers are required to
provide the notice to all current employees by May 27, 2015 (90
days from the Act's effective date). A sample notice is now
available on the D.C. Department of Employment Services' ("DOES")
website.
Slide 5
The employers name and any dba names it uses; The employers
main office or principal business place address; The employers
telephone number; The employees rate of pay, basis of that rate
including by the hour, shift, day, week, salary, piece, or
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; The Notice Must
Include:
Slide 6
The employees regular payday; and Any other information deemed
material and necessary. The Notice Must Include:
Slide 7
Amended Notices Required: An amended notice must be provided if
any changes occur, such as when there are changes to pay rates.
Other Requirements: Notices provided under the Act must be signed
and dated by the employer and the employee. Penalties for Failing
to give Notice: Failure to comply with the Acts notice requirements
subjects employers to fines of $500 per employee.
Slide 8
The amendments also impact: the Wage Payment and Wage
Collection Law (WPWCL), the Living Wage Act (LWA), the Minimum Wage
Revision Act (MWRA), and the Accrued Sick and Safe Leave Act
(ASSLA) in many ways. Other Modifications to District of Columbia
Wage Laws
Slide 9
Record Keeping and Payment Requirements FLSA exempt and
non-exempt employees must be paid at least twice a month and within
one business day following involuntary terminations (excluding
employees responsible for handling employer monies). The WTPAA
provides increased penalties for failure to maintain required
employee hour and compensation records.
Slide 10
Record Keeping and Payment Requirements The law amends current
recordkeeping requirements under DCs Minimum Wage Revision Act to
require employers to record the precise time worked each day and
each workweek by employees rather than just the hours worked.
Emergency Amendments clarified that bona fide executive,
administrative, and professional employees are exempt from the
WTPAAs requirement for employers to record the precise time worked
each day and each workweek by employees and are only required to be
paid once per month.
Slide 11
Joint Liability General contractors are jointly and severally
liable for their subcontractors WPWCL, LWA and ASSLA violations,
and failure to pay wages under the MWRA, although subcontractors
generally must indemnify general contractors for damages caused by
such violations. Emergency amendments were included in December to
provide a very limited exception where the contract between the
general contractor and subcontractor provides otherwise and the
contract was in effect prior to the effective date of the Act.
Slide 12
Joint Liability Employers likewise are jointly and severally
liable for their staffing agencies WPWCL, LWA, MWRA and ASSLA
violations, with the staffing agency required to indemnify its
client. The limited exception set forth above also applies to
staffing agencies and their clients.
Slide 13
Criminal Liability for Violations Negligent WPWCL and MWRA
violations are now punishable as misdemeanors.
Slide 14
New Administrative Process/Private Cause of Action There is a
new administrative process for MWRA, LWA, ASSLA and WPWCL
administrative complaints. Each statute now allows for a private
cause of action with remedies including back pay and reinstatement
and, for the MWRA, treble damages. Attorneys fees and costs are
also recoverable. The Emergency Amendments added in December
provide maximum caps for monetary penalties.
Slide 15
Greater Potential for Class Actions The definition of similarly
situated employees is now two or more persons 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 seek similar relief. Employees who
seek different amounts in damages or have different jobs may now be
considered similarly situated. Increases Risk of Class
Actions.
Slide 16
Retaliation Prohibited Retaliation against any employee who
complains about violations, initiates or intends to initiate a
complaint, provides information or participates in any
investigation, or otherwise exercises rights under the Act is
strictly prohibited. Retaliation is presumed to have occurred if an
adverse action is taken against the employee within 90 days of any
of the above protected activities. Even a threat can give rise to
retaliation claim.
Slide 17
Retaliation Prohibited Employees may file a civil action or
file an administrative complaint asserting a retaliation claim
under any of these statutes. Employers found liable for retaliation
will be subject to a variety of penalties, including economic
damages, civil penalties, liquidated damages, attorney fees, and
injunctive relief (including reinstatement of the complaining
employee).
Slide 18
Other Penalties for Violations Any business found guilty or
liable in any judicial or administrative proceeding of committing
or attempting to commit willful violations of these laws will not
be eligible to obtain a license to do business for the three-year
period following the violation.
Slide 19
What Should Employers Do? Employers must carefully evaluate the
new requirements of the Act to ensure compliance and avoid
penalties. To prepare, employers should: Gather the required
information and draft the notices now, particularly if an employer
must draft notices in languages in addition to English; Revise
record-keeping procedures and keep accurate record of time worked;
Review all pay policies, procedures, and practices to ensure they
comply with DC law; Update employment manuals and policies; and
Train appropriate personnel as to all of the foregoing.
Slide 20
Protecting Pregnant Workers Fairness Act of 2014 (PPWFA) The
PPWFA went into effect March 3, 2015. The Act requires employers to
provide reasonable accommodations to employees whose ability to
perform their job is affected by pregnancy, childbirth,
breastfeeding, or related medical conditions, unless such
accommodations would work an undue hardship on the operation of the
employers business. Employers are required to engage in an
interactive process with any employee requesting or needing an
accommodation.
Slide 21
Reasonable Accommodations The Act provides specific examples of
reasonable accommodations that may be required, such as: more
frequent or longer breaks; leave to recover from childbirth; a
private non-bathroom space for expressing breast milk; proper
seating; light duty job assignments; temporary transfer to a less
strenuous position; modifying equipment; modifying work schedule;
and excusing an employee from heavy lifting.
Slide 22
Undue Hardship Undue hardship is defined as any action that
requires significant difficulty in the operation of the employers
business or significant expense on the behalf of the employer when
considered in relation to factors such as the size of the business,
its financial resources, and the nature and structure of its
operation. Difficult standard to meet.
Slide 23
Medical Certification Medical certification regarding the need
for reasonable accommodations may be required by the employer,
provided the employer requires certification for other situations
involving temporary disabilities such as Family and Medical
Leave.
Slide 24
The Act Prohibits Employers From: Refusing to make reasonable
accommodations; Retaliating against an employee that requested an
accommodation; Denying employment due to the employers need to make
reasonable accommodations; Forcing an employee to accept an
accommodation that is not necessary; or Requiring an employee take
leave instead of offering an accommodation.
Slide 25
Other Requirements Employers must post and maintain a notice of
PPWFA rights in English and Spanish. Employers must also provide
written notice to all new employees upon hire and to all existing
employees within 120 days after the Acts enactment date. Finally,
subsequent to the effective date of the Act, employers also must
provide written notice of PPWFA rights to any employee that
notifies the employer of her pregnancy or other condition covered
by the Act, within 10 days of receiving such notice.
Slide 26
What Should Employers Do? Provide notice to all employees as
well as to any employee who is or was recently pregnant. Update
employment manuals and policies. Engage in the interactive process
= ADA Interactive Process. Seek certification if necessary. Train
supervisors. Be consistent.
Slide 27
Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA)
The FCRSAA took effect on December 11, 2014. The Act generally
prohibits employers with 10 or more employees in the District from
conducting any pre-offer inquiry into an applicants criminal
background. The Act does allow targeted use of post offer criminal
background checks, with an individualized assessment of each
candidate, taking into consideration the factors set forth in the
Act.
Slide 28
Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA)
The Act also recognizes limited exceptions, such as when another
law requires consideration of an applicants criminal history. The
above prohibitions also apply to unpaid internships and independent
contractor relationships.
Slide 29
Individualized Assessment Required Once a conditional offer of
employment has been made, Employers may inquire about the
applicants criminal background and may conduct criminal background
checks. If the applicant or employee has a criminal background, the
employer must conduct an individualized assessment to determine if
the conviction renders the applicant/employee unqualified for the
position in question prior to revoking a conditional offer or
taking adverse employment action.
Slide 30
Factors that Must be Considered The individualized assessment
must take into consideration the following factors: The specific
duties and responsibilities for the position sought; The bearing of
the criminal offense on the applicants fitness or ability to
perform the duties and responsibilities of the position sought
(focus on job duties in relation to crime); The time since the
offense/rehabilitation efforts; The age of the applicant at the
time of the offense;
Slide 31
Factors that Must be Considered The individualized assessment
must take into consideration the following factors: The frequency
and seriousness of the offense; Any information produced by or on
behalf of the applicant to show his or her rehabilitation and good
conduct since the offense; and Make applicant provide documents if
they dispute police/court records.
Slide 32
If Adverse Action is Taken: An applicant that believes an
adverse action was impermissibly taken based on a criminal
conviction has 30 days from the time of the adverse action to
request the employer provide a copy of all records obtained in its
consideration of the applicant. The employer then has 30 days to
provide these records and also provide the applicant with a notice
of his or her right to file an administrative complaint with the
D.C. Office of Human Rights. Employers who conduct background
checks must also ensure compliance with the notice requirements of
the Fair Credit Reporting Act.
Slide 33
Remedies for Violations There is no private right of action
under the law, meaning an aggrieved person must file an
administrative complaint with the D.C. Office of Human Rights.
Penalties for employers violating the law range from $1,000 to
$5,000 depending on the employers size, half of which may be
awarded to the complainant.
Slide 34
Other Factors to Consider: EEOC Guidelines Disparate Impact
Claims under Title VII/D.C. Human Rights Act Potential Exposure to
other claims such as Negligent Hiring, Negligent Retention, Unsafe
Work Environment Risk Management/Loss Prevention (Theft) FCRA Other
localities with ban the box provisions Montgomery County Prince
Georges County
Slide 35
What Should Employers Do? Review Applications and remove
questions regarding criminal backgrounds. If applicable, state that
successful candidates may be required to submit to background
checks after a job offer is made. Once job offer is made, if a
criminal background check is performed, conduct individualized
assessment taking into consideration the above factors. Do not ask
about arrests. Provide the individual with an opportunity to
challenge the background report or explain the criminal
conviction.
Slide 36
What Should Employers Do? Have individuals obtain certified
records if they dispute findings of the background check
investigation or provide written explanation as to why the
conviction would not impact ability to perform the job (Failure to
obtain records or to explain their position could be a reason to
exclude from consideration and help limit damages). Link facts of
criminal acts to reason not hired: facts of conviction to risks
associated with the job. Job related and business necessity.
Document, document, document.
Slide 37
Amendments to the District of Columbia Paid Sick and Safe Leave
Act Amendments to the District of Columbia Paid Safe and Sick Leave
Act (DCPSSLA) became effective October 1, 2014. The DCPSSLA
requires employers to provide paid accrued leave benefits to
eligible employees for specified reasons.
Slide 38
Reasons for Leave DCPSSLA requires employers to provide paid
accrued leave benefits to eligible employees for: 1. The employees
own physical or mental illness, injury or medical condition; 2. The
employees need to obtain professional medical diagnosis or care or
preventive medical care (i.e., doctors appointments);
Slide 39
Reasons for Leave DCPSSLA requires employers to provide paid
accrued leave benefits to eligible employees for: 3. The employees
need to care for a family member for reasons covered by Nos. 1 and
2 above. Family member includes a spouse (defined to include a
registered domestic partner), child (including foster children and
grandchildren, and children who live with the employee and for whom
the employee permanently assumes and discharges parental
responsibility), parent, spouses parent, sibling, siblings spouse,
childs spouse, or one who shares a committed relationship with the
employee (a familial relationship between two individuals
characterized by mutual caring and the sharing of a mutual
residence; does not require registration);
Slide 40
Reasons for Leave DCPSSLA requires employers to provide paid
accrued leave benefits to eligible employees for: 4.An absence
because the employee or family member is a victim of stalking,
domestic violence, or sexual abuse, provided, that the absence is
directly related to social or legal services pertaining to the
stalking, domestic violence, or sexual abuse, to: (A)Seek medical
attention for the employee or the employee's family member to
recover from physical or psychological injury or disability caused
by domestic violence or sexual abuse; (B)Obtain services from a
victim services organization;
Slide 41
Reasons for Leave DCPSSLA requires employers to provide paid
accrued leave benefits to eligible employees for: (C)Obtain
psychological or other counseling; (D)Temporarily or permanently
relocate; (E)Take legal action, including preparing for or
participating in any civil or criminal legal proceeding related to
or resulting from the domestic violence or sexual abuse; or (F)Take
other actions to enhance the physical, psychological, or economic
health or safety of the employee or the employee's family member or
to enhance the safety of those who associate or work with the
employee.
Slide 42
DCPSSLA and Other Paid Leave Benefits Many employers provide
paid leave benefits in excess of the amount required by the
DCPSSLA. District of Columbia employers should clarify that paid
leave benefits required by the DCSSLA run concurrently with other
paid leave or unpaid benefits, such as Family and Medical
Leave.
Slide 43
DCPSSLA and Other Paid Leave Benefits The DCPSSLA requires the
provision of accrued paid leave to employees in situations that may
not be covered by the employers leave policies such as in the case
of domestic violence impacting an employee or employees family
member. Employers should ensure that employment policies and
practices comply with the requirements of the DCSSLA as
amended.
Slide 44
The Amendments The Amendments significantly alter the original
language of the DCSSLA, expanding the scope and extent of paid
leave available to District of Columbia employees. The class of
employees covered under the Act has been broadened. Any employer in
the District of Columbia who directly or indirectly or through an
agent or any other person, including through the services of a
temporary services or staffing agency or similar entity, employs or
exercises control over the wages, hours, or working conditions of
is obligated to provide paid leave pursuant to the Act.
Slide 45
Eligibility for Leave There are no longer any length of service
pre-requisites to eligibility for leave under the Act as amended.
An employee becomes eligible to accrue leave on the first day of
employment. However, an employee may be required to complete 90
days of service prior to being eligible to take paid leave under
the Act.
Slide 46
Amount of Leave Required Employers with: 100 or more employees
must provide one hour of paid leave for every 37 hours an employee
works, up to a maximum of seven days annually, 25 to 99 employees
must provide one hour of paid leave for every 43 hours an employee
works, up to a maximum of five days annually, or 24 or fewer
employees must provide one hour of paid leave for every 87 hours an
employee works, up to a maximum of three days annually.
Slide 47
Ambiguity Regarding Carry Over of Leave Carry over unused
leave? Prior to the Amendments, the Act provided that employees may
carry over unused accrued paid leave benefits from year to year
without limit. Although this language has not been included in the
Amendments, the official notice prepared by the District of
Columbia Department of Employee Services states that accrued leave
may be carried over from year to year.
http://does.dc.gov/sites/default/files/dc/sites/does/page_
content/attachments/ASSLA%20Poster%20-
%20English%20Spanish%20Combo%20- %20FINAL.pdf.
http://does.dc.gov/sites/default/files/dc/sites/does/page_
content/attachments/ASSLA%20Poster%20-
%20English%20Spanish%20Combo%20- %20FINAL.pdf
Slide 48
Ambiguity Regarding Carry Over of Leave As originally drafted,
the Act made clear that although leave could be carried over, an
employee could not take more than the maximum amount of leave
provided for in any one year. The amendments eliminated this
language. The provision in the prior version of the Act specifying
that accrued benefits need not be paid at termination has also been
removed by the Amendments, and the Act is now silent with respect
to termination. However, the official notice prepared by the
District of Columbia Department of Employee Services states that
employers do not have to pay employees for unused paid sick leave
upon termination or resignation of employment.
Slide 49
Ambiguity Regarding Carry Over of Leave Accordingly, although
the amendments are unclear, it appears as if employers may specify
that employees will not be paid for unused leave at
termination.
Slide 50
Reinstatement of Accrued Leave Under the amended law, an
employer will be required to reinstate any previously accrued but
unused paid leave when an employee: (1) who was transferred out of
DC returns to a position with any division, entity, or location of
the same employer within DC; or (2) is rehired within one year of
separation from employment.
Slide 51
Record Retention Requirements Employers are required to
maintain records of hours worked by employees and accrued leave
taken for a period of three years, and to allow the Office of the
D.C. Auditor to access their records to monitor compliance. Failure
to maintain or to allow access to these records will create a
rebuttable presumption that the law was violated.
Slide 52
Retaliation Prohibited Retaliation for requesting or taking
leave is prohibited. If adverse action against an employee within
90 days of an employee requesting or taking leave under the Act
there is now a rebuttable presumption that the employer has
violated the Act.
Slide 53
Remedies The amended law now allows for a private right of
action.
Slide 54
What Should Employers Do? Employers should review their leave
policies carefully with respect to the following areas: Ensure that
sick and safe leave begins accruing upon employment, is available
after 90 days, and carries over from year to year. Implement
recordkeeping measures tracking hours worked and paid leave taken
and continue to maintain records for employees for at least three
years.
Slide 55
What Should Employers Do? Employers should review their leave
policies carefully with respect to the following areas: Make sure
to track leave for all employees, including temporary employees.
Update employment manuals and policies to clarify that paid leave
taken under the Act runs concurrently with other leave benefits.
Clarify that although accrued unused leave may be carried over from
year to year, employees may not take more than amount of leave
required by the Act in a calendar year. Clarify that at termination
there will be no payment of accrued, unused leave under the
Act.
Slide 56
How the Legalization of Marijuana Impacts Employers As of
December of 2014, 24 jurisdictions had laws that legalize use of
marijuana for medical purposes. Five of those
jurisdictionsColorado, Washington, Oregon, Alaska, and the District
of Columbiahave gone so far as to legalize the drug for
recreational use. Similar legislation is pending or under
consideration in a number of other states.
Slide 57
How the Legalization of Marijuana Impacts Employers
Connecticut, Maine and Rhode Island have laws prohibiting
organizations from discriminating against workers solely based on
their status as medical marijuana patients. Delaware, Minnesota and
Arizona go further and bar employers from discriminating against
registered and qualifying patients who test positive for marijuana,
with an exception of employees who are impaired in the
workplace.
Slide 58
Still classifies marijuana as a Schedule I drug with no legal
use. Under Federal regulations, several classes of employees must
undergo regular testing for marijuana. For example, DOT has issued
guidance stating that It remains unacceptable for any
safety-sensitive employee subject to drug testing under the DOTs
regulations to use marijuana. That includes pilots, school bus
drivers, truck drivers, train engineers, subway operators, aircraft
maintenance personnel, transit fire-armed security personnel, ship
captains and pipeline emergency response personnel, among others.
Federal Law
Slide 59
No state law requires employers to permit drug use in the
workplace or tolerate employees who report to work under the
influence. Most state statutes expressly carve out exemptions for
employers that prohibit any use of marijuana in the workplace, or
on the employers premises, as well as any on-the-job intoxication.
A few jurisdictions have also produced case law supporting an
employers right to terminate employment when an employee tests
positive for marijuana on the job. State Law
Slide 60
Can employer can discipline an employee for off-hours and
off-site use or influence, when it is pursuant to a valid
prescription (in medical marijuana states), or for off- hours and
off-site recreational use (in recreational marijuana states)? Could
the use of marijuana be required as a reasonable accommodation
under the ADA? Can employer discipline an employee for public
portrayal on social media or otherwise depicting the employee using
marijuana? What if you are a Federal Contractor governed by Federal
Laws including the Drug Free Workplace Act? Many Unanswered
Questions
Slide 61
The employer terminated the employment of a quadriplegic who
suffered from debilitating muscle spasms and possessed a valid
medical marijuana prescription. The termination decision was based
on the employees positive test for marijuana use even though he was
never under the influence of the drug on company premises. Case in
Point: Coats v. Dish Network, LLC (Colorado)
Slide 62
In the employees lawsuit for wrongful termination under
Colorados Lawful Activities law (the CO LA Law), which prohibits
termination for off-the-clock legal behavior, the Colorado trial
court dismissed, ruling that the employer had acted lawfully. The
Court of Appeals agreed, reasoning that the employment termination
was lawful because marijuana use is illegal under federal law and
thus could not be considered lawful activity under the CO LA Law,
even though it is explicitly legal under the states marijuana law.
The ruling has been appealed and is presently pending before
Colorado Supreme Court. Case in Point: Coats v. Dish Network, LLC
(Colorado)
Slide 63
Revise policies to require compliance with Federal Law. Review
states laws on discrimination against marijuana users; make sure
policies are consistent with those laws and prohibit "any
detectable amount of drugs that are illegal under state or federal
law. Review policies to make sure they clearly explain expectations
regarding impairment, use of marijuana outside of company time and
drug testing. If an employee tests positive for marijuana and
presents a medical marijuana card, then consider having interactive
disability discussion per ADA. Consider alternatives, including
leaves of absence, substitute medications. What Can Employers
Do?
Slide 64
Consider policies in the alternative to zero tolerance - much
like alcohol use - all off-site use for employers not in
safety-sensitive positions, but prohibit an employee from reporting
to work impaired or bringing marijuana to the workplace. Train
supervisors and managers. Consult with drug testing vendors to stay
abreast of advances in marijuana testing and to ensure a testing
program that complies with state law. What Can Employers Do?