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.
In 2018, the District of Columbia enacted the Tipped Wage Workers Fairness Amendment Act (“the Act”). Among other things, the Act imposes obligations on employers that employ tipped employees, including significant training and reporting requirements.
The Act applies broadly to D.C. employers with at least one employee who is paid a tipped minimum wage under District of Columbia law. If the employee receives tips but is paid cash wages at or above D.C.’s minimum wage, the requirements of the Act do not apply.
The Act covers various D.C. businesses and their employees, including:
- food service workers in a hotel, restaurant, cafeteria, apartment building, hospital, institution, or similar establishment;
- beverage staff in taverns, brew pubs, nightclubs, clubs, or entertainment venues;
- janitorial or building maintenance staff in an office building, institution, or similar establishment;
- non-professional employees who perform health care or related services in a hospital, nursing care facility, or similar establishment; and
- individuals who provide security services in an office building or institution or similar establishment.
In addition to reporting wages to the government and other notice requirements, the Act requires covered employers to:
- Issue a sexual harassment policy that includes information about how to report instances of sexual harassment to the employer and to the District of Columbia’s Office of Human Rights (DCOHR);
- Distribute that policy to employees; and
- Post the policy in a location accessible to employees.
The Act also requires that covered employers submit to the DCOHR the total number of any type of sexual harassment claims reported to the employer, and whether the alleged harassers were non-managerial employees, managerial employees, owners, operators, or others. This information must be tracked on an annual basis.
Employers must submit a copy of their sexual harassment policy and a certified report of sexual harassment claims for calendar years 2020 and 2021 by December 31, 2022. The deadline for reporting 2022 harassment claims is currently set for March 1, 2023. The sexual harassment claims report must be submitted using the DCOHR’s online form, which is located at: https://forms.dc.gov/f/OHRTWWFForm.
In addition, the Act requires that D.C. businesses with tipped workers undergo training that covers various topics, including Equal Employment Opportunity, sexual harassment, strategies for how to respond to, intervene in and prevent harassment in the workplace, and reporting potential violations. Employers are required to provide training on these topics to:
- Non-manager new hires, who must be trained either in person or online by a live, DCOHR-certified facilitator within 90 days of hire (unless the employee has participated in training in the last two years);
- Non-managers, owners and operators, who must be trained either in person or online by a live, DCOHR-certified facilitator once every two years; and
- Managers, who must be trained in person by a live, DCOHR-certified facilitator once every two years.
The Act also requires D.C. businesses to undergo training on employer responsibilities pursuant to the D.C. Wage Theft Prevention Amendment Act. However, training requirements associated with the Wage Theft Prevention Amendment Act have not yet been announced.
The DCOHR has indicated that good-faith efforts to complete training must occur by December 31, 2022. Within 30 days of completion of harassment training, the employer must submit a certification to the DCOHR at email@example.com.
Any individual required to receive training under this Act and who received training on or before December 31, 2021, will have to re-take the training, even if they had been trained within the last two years. The DCOHR will review any training materials for trainings conducted after January 1, 2022 to determine whether they satisfy the Act’s training requirements. The DCOHR’s guidelines for enforcement remain under development.
Harassment training must be provided by DCOHR-certified trainers. Please contact any of the authors, who are certified trainers, for additional information.