D.C. wage theft prevention law is now effective

The District of Columbia’s Wage Theft Prevention Amendment Act of 2014 (the “Act”) became effective February 26, 2015, according to the District of Columbia Department of Employment Services, Wage and Hour Compliance. The Act makes broad changes to D.C.’s wage and hour laws, which include the Minimum Wage Act Revision Act, the Living Wage Act, the Wage Payment and Wage Collection Law, and the Accrued Sick and Safe Leave Act.

The purpose of the Act is to enhance remedies, fines, administrative penalties, and enforcement of wage payment and collection laws by increasing the accountability of employers and strengthening worker protection laws. Specifically, the Act increases penalties for employers who commit wage-hour violations; provides anti-retaliation protections for workers who hold employers accountable for failing to pay wages owed; establishes a formal hearing process with enforceable judgments; and provides for better access to legal representation for victims of wage payment violations, while making it easier for workers to collect awards from businesses who fail to pay, either in whole or in part, an employee’s regular wages.

The Office of Wage-Hour (OWH) will conduct a comprehensive public education campaign for employers and employees in the coming weeks that includes webinars, conference calls, and information sessions. A tentative calendar of events for the upcoming information sessions is available on the Internet website at http://does.dc.gov/sites/default/files/dc/sites/does/page_content/attachments/March%202015%20–%20OWH%20Calendar%20of%20Events.pdf.

It is important to note that there temporary emergency amendment bills have been enacted to clarify the Act, taking into consideration employment contracts that may be in effect at the time of the effective date of the act. The emergency changes also exempt an employer from keeping precise time records for bona fide executive, administrative and professional employees, as well as certain other employees, and continue the wage payment exemption that allows employers to pay bona fide executive, administrative and professional employees at last once a month rather than at least twice during each calendar month. The changes also clarify notice requirements for employers and temporary employers to require an employer or temporary employer to provide notice to an employee in a second language if the Mayor has made the translation available, and to also require the Mayor to make available the notice in any language required for a vital document under the Language Access Act of 2004. In addition, one of the clarifications worked to remove a part of the Act that would have applied the changes as of October 1, 2014. All provisions in the bill are now effective as of February 26, 2015.

In addition, the OWH in the Labor Standards Bureau of the District of Columbia Department of Employment Services has issued a Notice summarizing key points in the Wage Theft Prevention Amendment Act of 2014, including:

Written employment notice, recordkeeping requirements. Employers are required to provide notice to employees at time of hire. Also, within 90 days of the effective date of the Act (within 90 days of February 26, 2015), every employer must furnish each employee with an updated written notice containing the information required. As proof of compliance, employers must retain copies of the written notice furnished to employees that are signed and dated by the employer and by the employee acknowledging receipt of the notice. Temporary staffing firms also have additional requirements.

This notice must include the following information:

(1) The name of the employer and any “doing business as” names used by the employer;

(2) the physical address of the employer’s main office or principal place of business, and a mailing address if different;

(3) the employer’s telephone number;

(4) the employee’s rate of pay and the basis of that rate, including (a) rate of pay by the hour, shift, day, or week (whichever is applicable, (b) salary, piece rate, or commission (whichever is applicable), (c) any allowances claimed as part of the minimum wage, including tip, meal or lodging allowances, (d) overtime rate of pay or exemptions from overtime pay, (e) living wage or exemptions from the living wage, and (f) any applicable prevailing wages;

(5) the employee’s regular payday designated by the employer.

Wage payment liability. When the employer is a subcontractor and has failed to pay an employee wages earned, the subcontractor and the general contractor are jointly and severally liable to the subcontractor’s employees for violations of the Wage Theft Prevention Amendment Act, the Living Wage Act and the Accrued Sick and Safe Leave Act. Clarifying temporary emergency amendment (Act 20-544 (B20-1012)) to the Act provides an exception for different terms provided in a contract between the contractor and subcontractor already in effect on February 26, 2015.

When a temporary staffing firm employs an employee who performs work on behalf of or to the benefit of another employer pursuant to a temporary staffing arrangement or contract for services, both the temporary staffing firm and the employer are jointly and severally liable for violations of the Wage Theft Prevention Amendment Act, the Living Wage Act, and the Accrued Sick and Safe Leave Act to the employee and to the District. Clarifying temporary emergency amendment (Act 20-544 (B20-1012)) to the Act provides an exception for different terms provided in a contract between the temporary staffing firm and the employer already in effect on February 26, 2015.

Violations; notice of complaint. If an allegation has been made than employer has failed to comply with the Act, the Mayor is to deliver two notices to the employer. The first Notice of Complaint must specify the alleged violation; potential damages, penalties and other costs; rights and obligations of the parties; and the process for contesting the complaint. The second Notice of Investigation must be posted for all employees to see for a period of at least 30 days that specifies an investigation is being conducted and information to employees on how they may participate.

Employers who negligently fail to comply with the Wage Theft Prevention Amendment Act or the Living Wage Act shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than $2,500 per affected employee for a first offense, and not more than $5,000 per affected employee for a subsequent offense.

Employers who willfully fail to comply with this Act or the Living Wage Act shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than $5,000, or imprisoned not more than 30 days, or both for a first offense; and be fined not more than $10,000, or imprisoned not more than 90 days, or both, for any subsequent offense.

The Mayor also has authority to assess and collect additional administrative penalties, including fines of $500 for each failure to maintain or retain payroll records (3 years, or the prevailing federal standard, if identified in regulations issued pursuant to the Act, whichever is greater); $500 for each failure to allow the Mayor to inspect payroll records or perform an investigation; $500 for each failure to provide each employee an itemized wage statement or written notice as required under the Act; $100 for each day the employer fails to post required notice; and penalties for violation of employee rights.

Retaliation. The Wage Theft Prevention Amendment Act extends protections prohibiting retaliation against employees who have made a complaint that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of the Act or the Living Wage Act, and gives the Mayor power to enforce the law. Threats are now included as a form of retaliation. Also, it is illegal for any person to retaliate. The law protects employees even if their employer incorrectly believes they made a complaint. (District of Columbia Department of Employment Services, Wage and Hour Compliance, http://does.dc.gov/service/wage-and-hour-compliance; District of Columbia Department of Employment Services, Labor Standards Bureau, Office of Wage-Hour, Notice, ; Legislation, Wage Theft Prevention Amendment Act of 2014, DC Law 20-157 (Act 20-426; B20-671), L. 2014, effective February 26, 2015, Wage Theft Prevention Correction and Clarification Emergency Amendment Act of 2014 (1st Emergency Amendment), DC Act 20-544 (B20-1012, L. 2014, enacted December 29, 2014; and Wage Theft Prevention Clarification Emergency Amendment Act of 2015 (2nd Emergency Amendment), DC Act 21-8 (B21-52), L. 2015, enacted January 29, 2015.)
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