New DC Wage & Hour Law Goes into Effect:
What Employers Need to Know
Starting on February 26, 2015, District of Columbia employers must provide written notice upon hiring to all new employees containing the following information pursuant to the Wage Theft Prevention Amendment Act of 2014 (the “Act”):
The employer’s name and any “doing business as” names;
The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
The employer’s telephone number;
The employee’s rate of pay and the basis of that rate, including by the hour, shift, day, week, salary, piece, 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 (which may require employers to list the specific exemption), 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.
Based on the language of the Act and the projected effective date, the Mayor’s office is obligated to issue a sample template of the required notice by April 27, 2015. And, by May 27, 2015 (90 days after the effective date of the Act), District of Columbia employers must provide this same written notice to all employees, regardless of whether they are newly hired. Furthermore, an employer may have to provide the notice in an employee’s primary language (if it is a language other than English), although it would only be obligated to do so if the Mayor’s office provides a sample template of the notice in that language, and it is either aware of the employee’s primary language or the employee requests a notice in his or her primary language.
All notices must be signed and dated by the employer and the employee, and employers must retain copies of the signed notices as proof of compliance for at least three years. Although the act is silent on whether a handwritten signature is required, without regulations to the contrary, it would be reasonable for employers to allow employees to acknowledge receipt of the notice with an electronic signature as long as there is a system in place ensuring that the specific employee generated the signature.
In addition, employers must provide amended notices to existing employees whenever any of the above information is changed. For example, employers must provide a new notice any time an employee's rate of pay increases or decreases. Employers who fail to comply with the notice requirements set forth above, or otherwise fail to maintain proper records of non-exempt employee work hours and compensation, will be subject to civil fines of $500 per employee.
The Act’s Additional Requirements
In addition to these new wage notification requirements, the Act amends the District of Columbia Wage Payment and Wage Collection Law (“WPWCL”), Living Wage Act, Minimum Wage Revision Act, and Accrued Sick and Safe Leave Act in a number of ways, including the following:
Requiring employers to record the “precise time worked” by employees who are compensated on an hourly basis;
While the Act originally was interpreted to apply to both non-exempt and exempt employees, the D.C. Council passed an emergency amendment on February 4, 2015 excluding employers from having to maintain the precise time worked for exempt employees and allowing employers to pay exempt employees only once a month, instead of the mandatory two-times per month for non-exempt employees.
Mandating that general contractors be jointly and severally liable for their subcontractors’ violations of the WPWCL, Living Wage Act, Minimum Wage Revision Act, and Accrued Sick and Safe Leave Act, and requiring subcontractors to indemnify general contractors for any damages incurred as a result of such violations (unless the violations were the result of the general contractor’s failure to comply with the payment provisions set forth in the subcontract);
Strengthening anti-retaliation protections for employees who report violations of the Living Wage Act, initiate a proceeding, provide information, or testify under the Act; and
Amending recordkeeping requirements for the D.C. Accrued Sick and Safe Leave Act of 2008 by requiring employers to keep records of the amount of paid leave taken by each non-exempt employee in addition to records regarding the number of hours that he or she worked.
Furthermore, D.C. employers will be subject to a number of new penalties for violations under the Act, including: (1) increasing employer penalties (in the form of liquidated damages equal to triple the amount of unpaid wages) for failing to maintain proper records of non-exempt employee work hours and compensation or other violations of the Wage Payment Act; (2) denial of a business license for 3 years for willful violations and suspension of a business license for failure to comply with administrative orders or conciliation agreements within 30 days of issuance; (3) expanded fines up to $10,000 or imprisonment up to 6 months for employers who negligently commit violations of the Minimum Wage Act; and (4) misdemeanor liability and fines for employers who negligently fail to comply with the provisions of the Act or the Living Wage Act.
What D.C. Employers Should Do Now
The new pay notice requirements of the Act are highly specific. To ensure compliance and avoid costly penalties, it is essential to carefully review the new requirements of the Act and speak with legal counsel regarding compliance. Additionally, since you will be required to provide new hires with written notice of pay as of February 26, 2015, you may want to refer to the sample notice from New York’s DOL pursuant to its Wage Theft Prevention Act, at least until the District of Columbia’s Mayor’s office issues its sample template in late April.
For existing non-exempt employees, you should immediately begin recording the precise time worked each day, not simply the hours worked. In addition, you should begin gathering the required information for the notices so that they can be drafted quickly, especially since you may be required to provide notices in multiple languages. You should also review all pay policies, practices and procedures to ensure compliance with District of Columbia law wage payment requirements, including updating your employee handbooks. Finally, you should train appropriate personnel on these important matters, so that managers and supervisors are fully aware of these new notice requirements and are likewise aware that they cannot in any way retaliate against employees who complain about violations of wage payment laws.
Chair, Labor • Employment