New DC Employment Laws Thomas L. McCally, Esq. Equity Member, Carr Maloney PC 2000 L Street, NW,...

New DC Employment Laws Thomas L. McCally, Esq. Equity Member, Carr Maloney PC 2000 L Street, NW, Suite 450, Washington, DC 20036 (202) 310-5506 [email protected] Copyright 2015 by Carr Maloney P.C. All rights reserved. No portion of this publication may be reproduced without prior written permission. This publication and program are intended to provide current and accurate information about the subject matter covered. This publication as well as orally conveyed information should not be construed as legal advice.

New DC Employment Laws Wage Theft Prevention Amendment Act of 2014 (WTPAA) Protecting Pregnant Workers Fairness Act of 2014 (PPWFA) Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA) Amendments to the District of Columbia Paid Sick and Safe Leave Act ___________________________________________ How Changes in Marijuana Laws May Impact Employers

Wage Theft Prevention Amendment Act of 2014 (WTPAA) The WTPAA became effective February 26, 2015. The Act significantly modifies District of Columbia wage laws. New Pay Notice Requirements. Modifies Existing District of Columbia Wage Laws New Recordkeeping and Posting Requirements New Administrative Process and Increased Penalties New Retaliation Provision

New Pay Notice Requirements The Act requires employers to provide specific written notice to employees regarding wages. Effective immediately, employers must provide the required notice to all new employees when they are hired, in English and in the employees primary language. Additionally, employers are required to provide the notice to all current employees by May 27, 2015 (90 days from the Act's effective date). A sample notice is now available on the D.C. Department of Employment Services' ("DOES") website.

The employers name and any dba names it uses; The employers main office or principal business place address; The employers telephone number; The employees rate of pay, basis of that rate including by the hour, shift, day, week, salary, piece, or 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, living wage, exemptions from the living wage, and the applicable prevailing wages; The Notice Must Include:

The employees regular payday; and Any other information deemed material and necessary. The Notice Must Include:

Amended Notices Required: An amended notice must be provided if any changes occur, such as when there are changes to pay rates. Other Requirements: Notices provided under the Act must be signed and dated by the employer and the employee. Penalties for Failing to give Notice: Failure to comply with the Acts notice requirements subjects employers to fines of $500 per employee.

The amendments also impact: the Wage Payment and Wage Collection Law (WPWCL), the Living Wage Act (LWA), the Minimum Wage Revision Act (MWRA), and the Accrued Sick and Safe Leave Act (ASSLA) in many ways. Other Modifications to District of Columbia Wage Laws

Record Keeping and Payment Requirements FLSA exempt and non-exempt employees must be paid at least twice a month and within one business day following involuntary terminations (excluding employees responsible for handling employer monies). The WTPAA provides increased penalties for failure to maintain required employee hour and compensation records.

Record Keeping and Payment Requirements The law amends current recordkeeping requirements under DCs Minimum Wage Revision Act to require employers to record the precise time worked each day and each workweek by employees rather than just the hours worked. Emergency Amendments clarified that bona fide executive, administrative, and professional employees are exempt from the WTPAAs requirement for employers to record the precise time worked each day and each workweek by employees and are only required to be paid once per month.

Joint Liability General contractors are jointly and severally liable for their subcontractors WPWCL, LWA and ASSLA violations, and failure to pay wages under the MWRA, although subcontractors generally must indemnify general contractors for damages caused by such violations. Emergency amendments were included in December to provide a very limited exception where the contract between the general contractor and subcontractor provides otherwise and the contract was in effect prior to the effective date of the Act.

Joint Liability Employers likewise are jointly and severally liable for their staffing agencies WPWCL, LWA, MWRA and ASSLA violations, with the staffing agency required to indemnify its client. The limited exception set forth above also applies to staffing agencies and their clients.

Criminal Liability for Violations Negligent WPWCL and MWRA violations are now punishable as misdemeanors.

New Administrative Process/Private Cause of Action There is a new administrative process for MWRA, LWA, ASSLA and WPWCL administrative complaints. Each statute now allows for a private cause of action with remedies including back pay and reinstatement and, for the MWRA, treble damages. Attorneys fees and costs are also recoverable. The Emergency Amendments added in December provide maximum caps for monetary penalties.

Greater Potential for Class Actions The definition of similarly situated employees is now two or more persons employed by the same employer at some point during the applicable statute of limitations period who allege one or more violations that raise similar questions as to liability and seek similar relief. Employees who seek different amounts in damages or have different jobs may now be considered similarly situated. Increases Risk of Class Actions.

Retaliation Prohibited Retaliation against any employee who complains about violations, initiates or intends to initiate a complaint, provides information or participates in any investigation, or otherwise exercises rights under the Act is strictly prohibited. Retaliation is presumed to have occurred if an adverse action is taken against the employee within 90 days of any of the above protected activities. Even a threat can give rise to retaliation claim.

Retaliation Prohibited Employees may file a civil action or file an administrative complaint asserting a retaliation claim under any of these statutes. Employers found liable for retaliation will be subject to a variety of penalties, including economic damages, civil penalties, liquidated damages, attorney fees, and injunctive relief (including reinstatement of the complaining employee).

Other Penalties for Violations Any business found guilty or liable in any judicial or administrative proceeding of committing or attempting to commit willful violations of these laws will not be eligible to obtain a license to do business for the three-year period following the violation.

What Should Employers Do? Employers must carefully evaluate the new requirements of the Act to ensure compliance and avoid penalties. To prepare, employers should: Gather the required information and draft the notices now, particularly if an employer must draft notices in languages in addition to English; Revise record-keeping procedures and keep accurate record of time worked; Review all pay policies, procedures, and practices to ensure they comply with DC law; Update employment manuals and policies; and Train appropriate personnel as to all of the foregoing.

Protecting Pregnant Workers Fairness Act of 2014 (PPWFA) The PPWFA went into effect March 3, 2015. The Act requires employers to provide reasonable accommodations to employees whose ability to perform their job is affected by pregnancy, childbirth, breastfeeding, or related medical conditions, unless such accommodations would work an undue hardship on the operation of the employers business. Employers are required to engage in an interactive process with any employee requesting or needing an accommodation.

Reasonable Accommodations The Act provides specific examples of reasonable accommodations that may be required, such as: more frequent or longer breaks; leave to recover from childbirth; a private non-bathroom space for expressing breast milk; proper seating; light duty job assignments; temporary transfer to a less strenuous position; modifying equipment; modifying work schedule; and excusing an employee from heavy lifting.

Undue Hardship Undue hardship is defined as any action that requires significant difficulty in the operation of the employers business or significant expense on the behalf of the employer when considered in relation to factors such as the size of the business, its financial resources, and the nature and structure of its operation. Difficult standard to meet.

Medical Certification Medical certification regarding the need for reasonable accommodations may be required by the employer, provided the employer requires certification for other situations involving temporary disabilities such as Family and Medical Leave.

The Act Prohibits Employers From: Refusing to make reasonable accommodations; Retaliating against an employee that requested an accommodation; Denying employment due to the employers need to make reasonable accommodations; Forcing an employee to accept an accommodation that is not necessary; or Requiring an employee take leave instead of offering an accommodation.

Other Requirements Employers must post and maintain a notice of PPWFA rights in English and Spanish. Employers must also provide written notice to all new employees upon hire and to all existing employees within 120 days after the Acts enactment date. Finally, subsequent to the effective date of the Act, employers also must provide written notice of PPWFA rights to any employee that notifies the employer of her pregnancy or other condition covered by the Act, within 10 days of receiving such notice.

What Should Employers Do? Provide notice to all employees as well as to any employee who is or was recently pregnant. Update employment manuals and policies. Engage in the interactive process = ADA Interactive Process. Seek certification if necessary. Train supervisors. Be consistent.

Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA) The FCRSAA took effect on December 11, 2014. The Act generally prohibits employers with 10 or more employees in the District from conducting any pre-offer inquiry into an applicants criminal background. The Act does allow targeted use of post offer criminal background checks, with an individualized assessment of each candidate, taking into consideration the factors set forth in the Act.

Fair Criminal Record Screening Amendment Act of 2014 (FCRSAA) The Act also recognizes limited exceptions, such as when another law requires consideration of an applicants criminal history. The above prohibitions also apply to unpaid internships and independent contractor relationships.

Individualized Assessment Required Once a conditional offer of employment has been made, Employers may inquire about the applicants criminal background and may conduct criminal background checks. If the applicant or employee has a criminal background, the employer must conduct an individualized assessment to determine if the conviction renders the applicant/employee unqualified for the position in question prior to revoking a conditional offer or taking adverse employment action.

Factors that Must be Considered The individualized assessment must take into consideration the following factors: The specific duties and responsibilities for the position sought; The bearing of the criminal offense on the applicants fitness or ability to perform the duties and responsibilities of the position sought (focus on job duties in relation to crime); The time since the offense/rehabilitation efforts; The age of the applicant at the time of the offense;

Factors that Must be Considered The individualized assessment must take into consideration the following factors: The frequency and seriousness of the offense; Any information produced by or on behalf of the applicant to show his or her rehabilitation and good conduct since the offense; and Make applicant provide documents if they dispute police/court records.

If Adverse Action is Taken: An applicant that believes an adverse action was impermissibly taken based on a criminal conviction has 30 days from the time of the adverse action to request the employer provide a copy of all records obtained in its consideration of the applicant. The employer then has 30 days to provide these records and also provide the applicant with a notice of his or her right to file an administrative complaint with the D.C. Office of Human Rights. Employers who conduct background checks must also ensure compliance with the notice requirements of the Fair Credit Reporting Act.

Remedies for Violations There is no private right of action under the law, meaning an aggrieved person must file an administrative complaint with the D.C. Office of Human Rights. Penalties for employers violating the law range from $1,000 to $5,000 depending on the employers size, half of which may be awarded to the complainant.

Other Factors to Consider: EEOC Guidelines Disparate Impact Claims under Title VII/D.C. Human Rights Act Potential Exposure to other claims such as Negligent Hiring, Negligent Retention, Unsafe Work Environment Risk Management/Loss Prevention (Theft) FCRA Other localities with ban the box provisions Montgomery County Prince Georges County

What Should Employers Do? Review Applications and remove questions regarding criminal backgrounds. If applicable, state that successful candidates may be required to submit to background checks after a job offer is made. Once job offer is made, if a criminal background check is performed, conduct individualized assessment taking into consideration the above factors. Do not ask about arrests. Provide the individual with an opportunity to challenge the background report or explain the criminal conviction.

What Should Employers Do? Have individuals obtain certified records if they dispute findings of the background check investigation or provide written explanation as to why the conviction would not impact ability to perform the job (Failure to obtain records or to explain their position could be a reason to exclude from consideration and help limit damages). Link facts of criminal acts to reason not hired: facts of conviction to risks associated with the job. Job related and business necessity. Document, document, document.

Amendments to the District of Columbia Paid Sick and Safe Leave Act Amendments to the District of Columbia Paid Safe and Sick Leave Act (DCPSSLA) became effective October 1, 2014. The DCPSSLA requires employers to provide paid accrued leave benefits to eligible employees for specified reasons.

Reasons for Leave DCPSSLA requires employers to provide paid accrued leave benefits to eligible employees for: 1. The employees own physical or mental illness, injury or medical condition; 2. The employees need to obtain professional medical diagnosis or care or preventive medical care (i.e., doctors appointments);

Reasons for Leave DCPSSLA requires employers to provide paid accrued leave benefits to eligible employees for: 3. The employees need to care for a family member for reasons covered by Nos. 1 and 2 above. Family member includes a spouse (defined to include a registered domestic partner), child (including foster children and grandchildren, and children who live with the employee and for whom the employee permanently assumes and discharges parental responsibility), parent, spouses parent, sibling, siblings spouse, childs spouse, or one who shares a committed relationship with the employee (a familial relationship between two individuals characterized by mutual caring and the sharing of a mutual residence; does not require registration);

Reasons for Leave DCPSSLA requires employers to provide paid accrued leave benefits to eligible employees for: 4.An absence because the employee or family member is a victim of stalking, domestic violence, or sexual abuse, provided, that the absence is directly related to social or legal services pertaining to the stalking, domestic violence, or sexual abuse, to: (A)Seek medical attention for the employee or the employee's family member to recover from physical or psychological injury or disability caused by domestic violence or sexual abuse; (B)Obtain services from a victim services organization;

Reasons for Leave DCPSSLA requires employers to provide paid accrued leave benefits to eligible employees for: (C)Obtain psychological or other counseling; (D)Temporarily or permanently relocate; (E)Take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from the domestic violence or sexual abuse; or (F)Take other actions to enhance the physical, psychological, or economic health or safety of the employee or the employee's family member or to enhance the safety of those who associate or work with the employee.

DCPSSLA and Other Paid Leave Benefits Many employers provide paid leave benefits in excess of the amount required by the DCPSSLA. District of Columbia employers should clarify that paid leave benefits required by the DCSSLA run concurrently with other paid leave or unpaid benefits, such as Family and Medical Leave.

DCPSSLA and Other Paid Leave Benefits The DCPSSLA requires the provision of accrued paid leave to employees in situations that may not be covered by the employers leave policies such as in the case of domestic violence impacting an employee or employees family member. Employers should ensure that employment policies and practices comply with the requirements of the DCSSLA as amended.

The Amendments The Amendments significantly alter the original language of the DCSSLA, expanding the scope and extent of paid leave available to District of Columbia employees. The class of employees covered under the Act has been broadened. Any employer in the District of Columbia who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of is obligated to provide paid leave pursuant to the Act.

Eligibility for Leave There are no longer any length of service pre-requisites to eligibility for leave under the Act as amended. An employee becomes eligible to accrue leave on the first day of employment. However, an employee may be required to complete 90 days of service prior to being eligible to take paid leave under the Act.

Amount of Leave Required Employers with: 100 or more employees must provide one hour of paid leave for every 37 hours an employee works, up to a maximum of seven days annually, 25 to 99 employees must provide one hour of paid leave for every 43 hours an employee works, up to a maximum of five days annually, or 24 or fewer employees must provide one hour of paid leave for every 87 hours an employee works, up to a maximum of three days annually.

Ambiguity Regarding Carry Over of Leave Carry over unused leave? Prior to the Amendments, the Act provided that employees may carry over unused accrued paid leave benefits from year to year without limit. Although this language has not been included in the Amendments, the official notice prepared by the District of Columbia Department of Employee Services states that accrued leave may be carried over from year to year. http://does.dc.gov/sites/default/files/dc/sites/does/page_ content/attachments/ASSLA%20Poster%20- %20English%20Spanish%20Combo%20- %20FINAL.pdf. http://does.dc.gov/sites/default/files/dc/sites/does/page_ content/attachments/ASSLA%20Poster%20- %20English%20Spanish%20Combo%20- %20FINAL.pdf

Ambiguity Regarding Carry Over of Leave As originally drafted, the Act made clear that although leave could be carried over, an employee could not take more than the maximum amount of leave provided for in any one year. The amendments eliminated this language. The provision in the prior version of the Act specifying that accrued benefits need not be paid at termination has also been removed by the Amendments, and the Act is now silent with respect to termination. However, the official notice prepared by the District of Columbia Department of Employee Services states that employers do not have to pay employees for unused paid sick leave upon termination or resignation of employment.

Ambiguity Regarding Carry Over of Leave Accordingly, although the amendments are unclear, it appears as if employers may specify that employees will not be paid for unused leave at termination.

Reinstatement of Accrued Leave Under the amended law, an employer will be required to reinstate any previously accrued but unused paid leave when an employee: (1) who was transferred out of DC returns to a position with any division, entity, or location of the same employer within DC; or (2) is rehired within one year of separation from employment.

Record Retention Requirements Employers are required to maintain records of hours worked by employees and accrued leave taken for a period of three years, and to allow the Office of the D.C. Auditor to access their records to monitor compliance. Failure to maintain or to allow access to these records will create a rebuttable presumption that the law was violated.

Retaliation Prohibited Retaliation for requesting or taking leave is prohibited. If adverse action against an employee within 90 days of an employee requesting or taking leave under the Act there is now a rebuttable presumption that the employer has violated the Act.

Remedies The amended law now allows for a private right of action.

What Should Employers Do? Employers should review their leave policies carefully with respect to the following areas: Ensure that sick and safe leave begins accruing upon employment, is available after 90 days, and carries over from year to year. Implement recordkeeping measures tracking hours worked and paid leave taken and continue to maintain records for employees for at least three years.

What Should Employers Do? Employers should review their leave policies carefully with respect to the following areas: Make sure to track leave for all employees, including temporary employees. Update employment manuals and policies to clarify that paid leave taken under the Act runs concurrently with other leave benefits. Clarify that although accrued unused leave may be carried over from year to year, employees may not take more than amount of leave required by the Act in a calendar year. Clarify that at termination there will be no payment of accrued, unused leave under the Act.

How the Legalization of Marijuana Impacts Employers As of December of 2014, 24 jurisdictions had laws that legalize use of marijuana for medical purposes. Five of those jurisdictionsColorado, Washington, Oregon, Alaska, and the District of Columbiahave gone so far as to legalize the drug for recreational use. Similar legislation is pending or under consideration in a number of other states.

How the Legalization of Marijuana Impacts Employers Connecticut, Maine and Rhode Island have laws prohibiting organizations from discriminating against workers solely based on their status as medical marijuana patients. Delaware, Minnesota and Arizona go further and bar employers from discriminating against registered and qualifying patients who test positive for marijuana, with an exception of employees who are impaired in the workplace.

Still classifies marijuana as a Schedule I drug with no legal use. Under Federal regulations, several classes of employees must undergo regular testing for marijuana. For example, DOT has issued guidance stating that It remains unacceptable for any safety-sensitive employee subject to drug testing under the DOTs regulations to use marijuana. That includes pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire-armed security personnel, ship captains and pipeline emergency response personnel, among others. Federal Law

No state law requires employers to permit drug use in the workplace or tolerate employees who report to work under the influence. Most state statutes expressly carve out exemptions for employers that prohibit any use of marijuana in the workplace, or on the employers premises, as well as any on-the-job intoxication. A few jurisdictions have also produced case law supporting an employers right to terminate employment when an employee tests positive for marijuana on the job. State Law

Can employer can discipline an employee for off-hours and off-site use or influence, when it is pursuant to a valid prescription (in medical marijuana states), or for off- hours and off-site recreational use (in recreational marijuana states)? Could the use of marijuana be required as a reasonable accommodation under the ADA? Can employer discipline an employee for public portrayal on social media or otherwise depicting the employee using marijuana? What if you are a Federal Contractor governed by Federal Laws including the Drug Free Workplace Act? Many Unanswered Questions

The employer terminated the employment of a quadriplegic who suffered from debilitating muscle spasms and possessed a valid medical marijuana prescription. The termination decision was based on the employees positive test for marijuana use even though he was never under the influence of the drug on company premises. Case in Point: Coats v. Dish Network, LLC (Colorado)

In the employees lawsuit for wrongful termination under Colorados Lawful Activities law (the CO LA Law), which prohibits termination for off-the-clock legal behavior, the Colorado trial court dismissed, ruling that the employer had acted lawfully. The Court of Appeals agreed, reasoning that the employment termination was lawful because marijuana use is illegal under federal law and thus could not be considered lawful activity under the CO LA Law, even though it is explicitly legal under the states marijuana law. The ruling has been appealed and is presently pending before Colorado Supreme Court. Case in Point: Coats v. Dish Network, LLC (Colorado)

Revise policies to require compliance with Federal Law. Review states laws on discrimination against marijuana users; make sure policies are consistent with those laws and prohibit "any detectable amount of drugs that are illegal under state or federal law. Review policies to make sure they clearly explain expectations regarding impairment, use of marijuana outside of company time and drug testing. If an employee tests positive for marijuana and presents a medical marijuana card, then consider having interactive disability discussion per ADA. Consider alternatives, including leaves of absence, substitute medications. What Can Employers Do?

Consider policies in the alternative to zero tolerance - much like alcohol use - all off-site use for employers not in safety-sensitive positions, but prohibit an employee from reporting to work impaired or bringing marijuana to the workplace. Train supervisors and managers. Consult with drug testing vendors to stay abreast of advances in marijuana testing and to ensure a testing program that complies with state law. What Can Employers Do?

New DC Employment Laws Thomas L. McCally, Esq. Equity Member, Carr Maloney PC 2000 L Street, NW,...

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Transcript of New DC Employment Laws Thomas L. McCally, Esq. Equity Member, Carr Maloney PC 2000 L Street, NW,...