The DC Wage Theft Prevention Amendment Act (WTPAA) goes into effect today, following the expiration of the mandatory congressional review period. The WTPAA, which was originally signed into law by Mayor Vincent Gray on September 19, 2014, was itself amended by emergency legislation passed in December 29, 2014.
The new law contains several important new requirements for DC employers.
Scope of Coverage
The WPTAA expands coverage of the DC Wage Payment and Wage Collection Act to include employees who are employed in a bona fide executive, administrative, or professional capacity. It repeals the exception that had previously existed for such employees, who are classified as “exempt” from overtime requirements under the Fair Labor Standards Act.
The emergency amendment clarified that employers are not required to log the “precise time worked” by exempt employees, as they are for non-exempt employees. It also clarified that employers are not required to pay exempt employees at least twice a month, as they are for non-exempt employees, but must pay such employees at least once per month. However, exempt employees are now covered by the DC Wage Payment and Wage Collection Act (DCWPCL), and may bring lawsuits against their employers under that law.
Notice and Posting Requirements
The WPTAA requires that all DC employers provide, at the time of hire, a notice that includes:
- The employer’s name (including any “D/B/A” names it uses)
- The employer’s principal place of business address, as well as a mailing address, if different
- The employer’s telephone number
- The employee’s rate of pay and basis of the rate (e.g., by the hour, shift, day, week, salary, piece, or commission)
- Allowance(s) claimed as part of minimum wage (such as tips, meals, or lodging)
- Overtime pay rate and exemptions from overtime pay
- The D.C. living wage and exemptions from living wage
- Applicable prevailing wages
- The employee’s regular payday
The employer must provide such notice to current employees within 90 days of the WPTAA’s enactment. The notice must be in English and the employee’s primary language if other than English. The mayor is to provide an English-language notice template within 60 days of the law’s enactment.
(The emergency amendment clarified that the employer is only required to provide a non-English pay notice to an employee if the mayor’s office has provided a sample template of the notice in that language and the employer knows or is otherwise informed that the non-English language is the employee’s primary language.)
The WTPAA also requires employers to post a copy or a summary of the law, which the mayor’s office is to make available within 60 days of the law’s effective date.
The employer’s failure to provide the required notice and posters tolls the statute of limitations for a claim under the WPTAA. It also will count against the employer’s credibility regarding the rate of pay in a subsequent enforcement action.
The WTPAA requires employers to track a non-exempt employee’s “precise time worked,” to the minute (e.g., 9:06 AM to 12:06 PM, and 12:36 PM to 5:36 PM). Previously, employers were only required to record the total “hours worked” by an employee each day (e.g., 8 hours).
The WTPAA also requires employers to retain time records for employees for the greater of three years or the prevailing federal standard (the law had previously required employers to retain records for three years). Employers are required to retain copies of the wage notices that are signed and dated by both employer and employee as proof of receipt.
In addition, the WPTAA amends recordkeeping requirements for the D.C. Accrued Sick and Safety Leave Act of 2008. Employers must keep not only records of an employee’s hours worked, but also the amount of paid leave taken by each employee.
Expanded Retaliation Protections
The WTPAA protects from discrimination or retaliation any employee who:
- Complains, or is believed by the employer to have complained, to his or her employer or to DC or federal authorities that the employer has violated the WTPAA or the DC Living Wage Act;
- Initiates a proceeding under or related to the WTPAA;
- Provides information to DC or federal authorities about a violation, investigation, or proceeding under the WTPAA;
- Testifies in an investigation or proceeding under the WTPAA;
- Otherwise exercises rights protected under the WTPAA
Retaliation is presumed if an adverse employment action is taken against an employee within 90 days of the employee’s engaging in any of these activities. Employees may sue an employer for violation of the anti-retaliation provisions in court or request administrative enforcement. The employer may be liable for civil penalties, liquidated damages, attorneys’ fees, injunctive relief, and reinstatement.
General Contractors and Temporary Staffing Agencies
The WPTAA makes general contractors jointly and severally liable for violations of DC wage-and-hour laws by their subcontractors, including the failure to pay wages properly. Subcontractors must indemnify their general contractors for any penalties for the subcontractor’s violations, unless: the general contractor’s failure to timely pay the subcontractor caused the violations, or the general contractor and subcontractor agreed to a different arrangement before the effective date of the Act.
In addition, employers that use temporary staffing agencies may be held jointly and severally liable for violations by those agencies. However, the temporary staffing agency must indemnify the employer, unless the employer and temporary staffing agency agreed to a different arrangement before the effective date of the Act.
Expanded Criminal and Civil Penalties
The WPTAA significantly increases civil and criminal penalties in for employers who violate the WPTAA or other DC wage-and-hour laws. If an employer is found guilty of or admits to willful violations under the WPTAA in any judicial or administrative proceeding, the employer may lose its D.C.-issued business license.
Additionally, the WPTAA adds new criminal penalties for negligent violations. Before the WPTAA, only willful wage-and-hour violations were subject to criminal penalties. The Act increases the potential civil liability of employers for liquidated damages, attorneys’ fees, and litigation costs.
The WPTAA establishes a detailed administrative process for pursuing complaints under the DC wage-and-hour and sick leave laws. The DC Office of Wage-Hour (OWH) is empowered to conduct formal administrative hearings to enforce these laws, and may issue default judgments against employers who fail to appear and contest a case.
Class Actions and Litigation
The WPTAA contains provisions make it easier for an employee to bring a class action lawsuit under DC wage-and-hour laws. It clarifies that employees may bring class actions for violations of the DC Minimum Wage Revision Act, as they may for violations of the DCWPCL. It also makes it easier for employees to prove that that are “similarly situated” to each other for purposes of bringing a class action.
What Should Employers Do?
The WPTAA puts D.C. at the forefront of jurisdictions that have wage-and-hour protections that go beyond federal law.
- Employers should issue pay notices that comply with the WPTAA.
- Employers should review their employment policies and train managers to ensure compliance with all laws affected by the WPTAA.
- Employers should review their agreements with temporary staffing agencies and subcontractors to ensure that they provide expressly for indemnification for wage-and-hour violations
As always, our experienced attorneys at Bailey & Ehrenberg are here to help with all of your employment law needs.