DC Labor Law Compliance Review

If you’re in a leadership role at a company based in Washington DC, you’re no stranger to the fact that DC has created numerous employment laws that go above and beyond the standards set at the federal level. If your company is headquartered outside of DC and has employees working in DC, you are likely required to comply with many of DC’s unique employment laws as well. Did you know if your company is headquartered outside of DC and has employees working in DC, you are likely still required to comply with many of DC’s unique employment laws?

Hopefully after reading my article, you will have clarity around:

• which employers are covered,
• whether there are additional coverage requirements for employees,
• and some general information about the impact of the regulations.

The First Step to Compliance with DC Employment Laws

My clients with employees in DC often call me as they are playing catch up in the wake of the flurry of new employment laws and amendments that have come onto the books in the last two years. When clients ask me where to start regarding compliance with DC laws, I recommend we begin with a Compliance Assessment of the HR function to determine what current compliance gaps exist. Following the results of the assessment, we work through a two-pronged approach that covers:

1. Identifying common and recurring non-compliant actions to address immediately.
   • This is almost always the most pressing focus area since each succeeding action unless remedied, is an occurrence of non-compliance.
2. Training to internal stakeholders and process documentation.
   • This second prong is critical to reduce liability by preparing companies in advance for events that, until they happen, aren’t compliance problems. To ensure your company is out in front of these sorts of situations, it’s important to have formalized processes that clearly note roles and responsibilities. Without training, it’s difficult to imagine the related processes will be used properly (or at all) when they should be.

While the regulations listed below hardly match the scope of what would be covered in a full Compliance Assessment that we provide at Helios HR, this should provide coverage information on DC employment laws which are most likely to impact your business. None of the information provided is intended to serve as legal advice, and the information is not intended to provide a level of comprehensiveness that covers all of the potential caveats regarding applicability and impact.

In addition, most DC employment laws require information about the rights of workers and responsibilities of employers be posted in a conspicuous location, and also include recordkeeping requirements. As a general rule, I recommend the requirements of the laws that apply to your company be integrated into your internal policies. These points are not restated for each of the following regulations but should be kept at the top of your mind when reviewing which laws apply to your business.

The Top DC Labor Laws

1. Earned Sick and Safe Leave Amendment Act

Who’s Covered:

• Employers: All employers with employees who work in DC.
• Employees: Employees (both part and full-time) who work in DC, as well as in some additional employment situations.

Impact:

Employees begin to accrue leave upon hire and may begin to access this paid leave after 90 days of service. Accrual rates (listed below) are dictated by the size of your company. The covered leave must be appropriately tracked and accrued. If during an audit your relevant records aren’t available, the presumption by DC government is that a violation has occurred unless proven otherwise.

2. DC Family and Medical Leave Act

Who’s Covered:

• Employers: Who have 20 or more employees who work in DC.
• Employees: Employees who work in DC who have been employed by your company for at least one year and worked for at least 1,000 hours during the 12 month period immediately preceding the request for medical leave.

Impact:

This DC law is very similar to the federal version of the FMLA, although it applies to some employers who would not be covered by the federal FMLA based on lower company size requirements. Depending on the specifics of the situation, an employee may be covered by both laws and you may need to simultaneously track time taken from both entitlements.

Another key difference between the laws is that the federal FMLA allows employers to force employees accrued paid time off (PTO) to be used in conjunction with protected leave (which is unpaid) taken under the federal FMLA as long as it’s consistent with their policy. The DC FMLA is different in that the covered employee dictates whether they want their accrued PTO to be charged in conjunction with the protected leave.

3. Protecting Pregnant Workers Fairness Act

Who’s Covered:

• Employers: All employers with employees who work in DC are covered.
• Employees: All employees who work in DC are covered.

Impact:

The Protecting Pregnant Workers Fairness Act (PPW) requires DC employers provide reasonable workplace accommodations for employees whose ability to perform job duties is limited because of pregnancy, childbirth, breastfeeding, or a related medical condition.

If an employee does request an accommodation, your company is required to engage the employee in a timely manner in an interactive process to determine the accommodations. During the course of this process, it is within the right of your company to require a certification from a healthcare provider indicating that a reasonable accommodation is advisable as well as some additional details that are required to make an informed determination.

4. Minimum Wage

Who’s Covered: There are two ways in which minimum wage laws can cover employees. If either the employer or employee threshold is met, then the employee in question is covered.

• Employers: Employers with at least two employees who have an annual sales volume of at least $500,000; and/or
• Employees: Employees whose work regularly involves them in commerce between States. For example, employees who regularly make telephone calls to persons located in other States would be covered.

Impact: Under DC’s new law, the minimum wage is set to increase by $1.00 on July 1 each year through 2016, capping at $11.50 per hour. Beginning on July 1, 2017, the District’s minimum wage will increase annually in proportion to the annual average increase in the CPI for the preceding 12 months.

Since requirements regarding pay practices are generally laid out at the federal level via the Fair Labor Standards Act, this section does not go into depth regarding overtime, etc.

5. Wage Transparency Act

Who’s Covered:

• Employers: Who have at least one employee who works in DC.
• Employees: Who work for covered employers.

Impact:

The main impact of DC’s Wage Transparency Act is that it goes above and beyond the federal NLRA and provides protections to supervisors. In a bit of an oversimplification, this means employers can not discipline or retaliate against an employee who inquiries about or discloses wages of another employee at their company. This law does not provide protections to employees with access to employee wage data, like HR or payroll.

6. Wage Theft Prevention Amendment Act

Who’s Covered:

• Employers: All employers with employees who work in DC are covered.
• Employees: All employees who work in DC are covered.

Impact:

Employers are now required to provide all new employees (they should have notified existing employees at the time by May 27, 2015) a notice with information regarding the terms of their employment. This notice needs to be signed by the employee and retained by the employer. Additional information regarding the information that is required to be shared can be found here.

In addition, this Act places additional requirements on employers regarding the timing of the final payment of wages to employees, as well as providing protections against retaliation. The way in which time-tracking of nonexempt employees has also been revised in a major way. The Act requires employers to track the ‘precise’ time work commences and ends for each employee as opposed to merely recording the amount of time.

7. Fair Criminal Record Screening Amendment Act

Who’s Covered: This law applies to employers and job applicants and not current employees.

• Employers: Who have 11 or more employees in DC and have new job openings in DC. There are additional exemptions for employer coverage that are listed in this Employer FAQ.
• Applicants: Who apply for positions not exempt from the Act.

Impact:

Employers are prohibited during the application and interview process to ask about arrests, criminal accusations made against the applicant that aren’t pending or did not result in a conviction, and criminal convictions. Employers are able to ask about criminal convictions only after extending a conditional offer of employment, and are never allowed to ask about arrests or criminal accusations.

An employer who properly asks about a criminal conviction can only withdraw the offer or take adverse action against the applicant for a legitimate business reason that is reasonable when considering all of these six factors:

1. Specific duties and responsibilities necessarily related to the employment;
2. Fitness or ability of the person to perform one or more job duties or responsibilities given the offense;
3. Time elapsed since the occurrence of the offense;
4. Age of the applicant when the offense occurred;
5. Frequency and seriousness of the offense; and
6. Information provided by applicant or on his or behalf that indicates rehabilitation or good conduct since the offense occurred.

If a conditional offer of employment is then withdrawn, the employer must advise the affected applicant about the right to file a complaint.

The employment law landscape was crowded without DC’s additional employment laws, and the regulatory web that all of the laws create can be overwhelming when viewed as a whole. Like I mentioned before though, going through a structured assessment is a great first step to determining where your compliance gaps are and putting together a well laid out plan to take corrective action. The good news at the end of the day is you have a lot of tools at your disposal to ensure compliance and avoid unnecessary fines and associated bad press.