Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The District of Columbia continues to implement broad employment initiatives, ranging from wage and hour laws to stricter civil penalties. The following is a rundown of key developments for employers to keep an eye on as we move into the next quarter of 2023.
DC Tipped Wage Workers Amendment Act
The District of Columbia’s Tipped Wage Workers Fairness Amendment Act (TWWFAA) continues to be a big talking point for the hospitality industry. The TWWFAA requires D.C. employers that employ a tip credit for any employee in the District to: 1) submit a copy of their sexual harassment policy documentation and certifications to D.C.’s Office of Human Rights (DCOHR); 2) submit reports containing the number of instances of sexual harassment complaints to the DCOHR; and 3) provide sexual harassment and wage and hour training to all employees, managers, owners, or operators of the organization who work or oversee operations in the District. Separately, the TWWFAA requires all employers that have a tip-sharing policy to provide their employees with a tip declaration form each pay period outlining the total tips received, the amount of tips the employee received from other employees, the amount of tips the employee shared with other employees, and a breakdown of tips received in credit card versus cash.
Given the confusion around many provisions in the TWWFAA, the DCOHR released additional guidance to help clarify a number of issues.
- If one of the organization’s locations ceases operations in D.C., the employer must submit the Documents and Certifications Online Form for any years the location was operating since 2020. This includes copies of both the employers’ sexual harassment policies and reports of sexual harassment.
- If the employer has a D.C. location opening later this year, the employer must submit the Documents and Certifications Online Form within 90 calendar days of opening.
- Employers with multiple locations in the District of Columbia must submit a separate Documents and Certifications Online Form for each location in the District of Columbia.
- These training requirements will remain in effect, despite the District of Columbia’s passing of Initiative 82 (discussed below).
- Those who attend the mandatory anti-sexual harassment training must complete satisfaction surveys in order to receive certificates of training completion, which are valid for two years from the date of training. The employees may take the certifications with them to another D.C. employer where they would otherwise be required to be trained again.
- The deadline for businesses to: (1) submit copies of their sexual harassment policies for years 2020-2022; and (2) to submit the number of instances that they received reports of sexual harassment for years 2020-2022 (including any year in which the business received 0 reports), to DCOHR has been extended until May 18, 2023 (and may be extended further). Employers should submit these documents and information using this link.
- For calendar years after 2022, employers must submit this information by March 31 of the following year. Therefore, information for calendar year 2023 must be submitted by March 31, 2024.
- The deadline for completion of the mandatory anti-sexual harassment training has been extended to August 31, 2023.
For additional information, contact any of the authors, who are DC OHR certified trainers.
Initiative 82 Updates
As we previously reported, D.C. voters overwhelmingly approved Initiative 82. Its aim is to gradually phase out the D.C. tip credit, while simultaneously increasing the minimum hourly cash wage until it matches D.C.’s mandatory minimum wage rate (currently, $16.10 per hour). As of May 1, 2023, the tipped minimum wage in D.C. is $6.00/hour, and the maximum allowable tip credit rate is $10.10/hour.
Given delays in congressional review, the D.C. Council has issued revised deadlines, including an increase to $8.00 per hour on July 1, 2023. Also effective July 1, 2023, the D.C. minimum wage will increase from $16.10 per hour to $17.00 per hour for all employers. It is recommended that employers begin preparations now to increase their tipped and non-tipped minimum wage rates by the above deadlines.
Expanded DC Attorney General Authority to Bring Lawsuits Against Employers
Consistent with the D.C. Attorney General’s recent involvement in wage and hour investigations, D.C. enacted the Attorney General Civil Rights Enforcement Congressional Review Emergency Amendment Act of 2023 (AGCRE). AGCRE amended D.C.’s Human Rights Act to clarify how the attorney general is permitted to enforce the Human Rights Act and the remedies available when the attorney general decides to bring a civil action.
AGCRE provides that, for a civil action initiated by the attorney general for violations of the Human Rights Act, the attorney general may obtain:
- Civil penalties, including:
- $10,000 for the first offense, if the respondent has not committed any prior unlawful discriminatory practices;
- $25,000 for the second offense during the five-year period ending on the date of the filing of the charge; and
- $50,000 for two or more offenses during the seven-year period ending on the date of the filing of the charge for each violation of the Act, and, in the context of a discriminatory job advertisement, for each day the advertisement was posted;
- Injunctive relief; and
- Other relief, including employee reinstatement, extension of full and equal accommodations, compensatory damages, and reasonable attorneys’ fees.
AGCRE also gives the attorney general broad subpoena power to seek the production of documents and compel testimony of witnesses under oath. Notwithstanding these recent clarifications, and given the emergency basis upon which the law was enacted, AGCRE is set to expire on June 8, 2023, absent an extension.
D.C. Cannabis Employment Protections Amendment Act of 2022
D.C.’s Cannabis Employment Protections Amendment Act of 2022 (District of Columbia Bill 24-109) (CEPAA) provides for wide-ranging employment protections for marijuana users and prohibits employers from adversely affecting the employment of any person who uses marijuana or tests positive for the drug. This includes prohibitions with respect to an employer’s failure to hire and failure to promote, as well as demotions, suspensions and terminations based on an employee’s use of marijuana, status as a medical marijuana patient, or positive drug test (absent on-the-job impairment).
CEPAA also prohibits marijuana testing as a condition of employment, except for certain positions or if otherwise required by law. Exceptions include, but are not limited to: safety-sensitive positions, such as the provision of security services, including police; regular or frequent operation of a motor vehicle, heavy or dangerous equipment or machinery; regular or frequent work on a construction site, or near power or gas utility lines; the administration of medications; as well as for employees of the federal government.
This bill is scheduled to become effective on or after July 13, 2023. It is currently unfunded but will become operative when the provisions are included in an approved budget. In anticipation of the effective date of the legislation, employers should review and revise their drug-testing policies to ensure compliance with D.C. law.
DC Second Chance Amendment Act
D.C.’s Second Chance Amendment Act (District of Columbia Bill 24-63) (“Second Chance”), amends the requirements to seal criminal records, which now include automatic sealing for individuals charged, but not convicted, of non-violent crimes. Second Chance shortens the waiting periods to seal conviction records. It also permits employment applicants to indicate a "no record" response when asked about prior arrests, court appearances, adjudications, or convictions. Notably, criminal records may still be accessed by specific employers, including those that work with children, the elderly, or other special needs populations.
The bill was scheduled to go into effect in March 2023 but will not become operative until its fiscal impact is included in an approved budget. We will continue to monitor any new developments with this legislation.
Employer-Provided Parking Benefits Regulations
The D.C. Parking Cashout Law requires that District employers that offer free or subsidized parking to their employees must perform one of the following:
- Offer a Clean Air Transportation Fringe Benefit or parking cashout option, which is equal to or greater than the market value of the parking space offered to the employee.
- Develop and implement a Transportation Demand Management Plan (the “TDM Plan”), which must be approved by D.C.’s Department of Transportation (DDOT). The TDM Plan must demonstrate that the employer will make efforts to reduce single-occupancy vehicle commuting by at least 10% from the previous year until 25% or less of employees’ commuter trips are made by car; or
- Pay a Clean Air Compliance Fee to the DDOT of $100 per month per employee who is offered parking benefits.
This law applies to D.C. employers with 20 or more covered employees. Covered employees include part-time or full-time employees who work in a D.C. office or those on a hybrid schedule who spend at least 50% of their working time in D.C. However, DDOT has subsequently clarified that employees who telework over 50% of the time outside D.C. are not considered covered employees. The law does not apply to any D.C. business that does not offer free or subsidized parking.
In addition, the law exempts D.C. businesses that owned their parking before October 1, 2020 and continue to do so. D.C. businesses that are under a current parking lease that began before October 1, 2020, are exempt until the lease term ends, regardless of possible extensions. The law also exempts hospitals and universities with pre-existing Campus Plans unless the hospitals or universities build outside an existing Campus Plan or the Campus Plan expires.
All covered employers, regardless of whether they offer a parking benefit, must submit a report to DDOT detailing how they are complying or that an exemption applies.
Reproductive Health Protection
In response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned the constitutional right to an abortion, the D.C. City Council passed the Enhancing Reproductive Health Protections Amendment Act of 2022 (ERHPAA), which recognizes the right of every individual to choose or refuse contraception or sterilization. It also recognizes the right of every individual who becomes pregnant to decide whether to carry a pregnancy to term, to give birth, or to have an abortion.
Most notably, the Act prohibits employers from penalizing an individual seeking or inducing an abortion or assisting another individual who is seeking or inducing an abortion. An employee who believes this law has been violated “shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate…within 2 years of the violation or the discovery of the violation.” § 7-2086.01(d).
ERHPAA became effective February 23, 2023.
Lastly, D.C.’s Domestic Worker Employment Rights Amendment Act of 2022 (D.C. Act 24-777) (DWERAA) requires employers to provide a written agreement when employing a domestic worker as an employee or independent contractor. This law applies to more than 9,000 D.C. domestic workers and defines a “domestic worker” as an “individual who performs domestic services for compensation in or around the private residence of another.”
DWERAA, however, specifically excludes the following from its definition of a “domestic worker”:
- An individual who is a family member of the hiring entity for whom the individual performs domestic services;
- An individual who primarily performs household repairs or construction, such as plumbing, masonry, painting, renovating, or similar construction work;
- An individual whose primary responsibilities are caring for, boarding, or walking dogs, cats, or other household pets; or
- An individual employed or engaged on a casual basis.
The agreement provided to covered domestic workers must include:
- The start date;
- The ending date, if known;
- The address where work is to be performed or the hiring entity’s business address that is on file with D.C.’s Department of Licensing and Consumer Protection;
- The primary contact information for the hiring entity, including a telephone number;
- The duties to be performed by the domestic worker;
- The rate of pay per hour, week, or other unit of time (if the domestic worker is an employee, the agreement must also provide the overtime rate);
- The form, place, and frequency of payment;
- The date first payment will be provided;
- The weekly schedule, including days of the week, start time, end time, and number of hours of work per week;
- If the domestic worker will be provided with rest breaks or meal breaks, the customary practice or time;
- Types of leave from work provided and whether the leave shall be paid or unpaid;
- Any other compensation or reimbursement provided by the hiring entity, such as health insurance premiums, transportation allowance, or separation pay;
- Whether the domestic worker must provide their own vehicle for the fulfillment of work duties; and
- For live-in domestic workers, a description of the type and value of lodging provided, time of sleeping period, and personal time allotment.
The bill was enacted on January 18, 2023, and was scheduled to go into effect in March 2023 but it will not become operative until its fiscal impact is included in an approved budget. We will continue to monitor any new developments with this legislation.