New Workplace Obligations for D.C. Employers – Generally and Those of Tipped Workers
On October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018,” which includes a new posting requirement for all employers and broad new obligations for employers of tipped workers. The law will take effect following a 30-day period of Congressional review and publication in the D.C. Register.
Applicable to all private employers: The new law requires the Mayor to create a website setting forth employees’ rights and benefits under D.C.’s anti-discrimination and labor laws (including wage and leave laws), and providing resources for consultation. Employers will be required:
- To post a new poster containing the new internet website address and list of laws, along with other information, in a conspicuous location, specifically including timeclocks and breakrooms. This will replace the individual posting requirements under the various laws.
- To provide a binder or other compilation of the information from the website at each poster location. This information must be updated monthly.
The failure to comply with these posting and notice obligations is subject to a $100 per day fine.
Applicable to employers of tipped workers: The law repeals a voter-passed ballot measure, Initiative 77, that would have increased the minimum wage for tipped workers. Instead, the law mandates a public education campaign on the rights of tipped workers under the minimum wage, wage payment, and paid sick leave laws, and creates an internet and telephone reporting system for violations of these laws. (Notably, the reporting system appears to apply for any violation of these laws – not just those related to tipped workers.) The law also imposes extensive new obligations on employers of tipped workers, as follows:
- Mandatory sexual harassment training, either through a course developed by the Office of Human Rights or from an OHR-certified provider:
- New employees must receive in person or online training within 90 days after hire, unless they have received such training within the past two years.
- Current employees must receive in person or online training within two years.
- Owners and operators must receive in person or online training every two years.
- Managers must receive in person training (online is not permitted) every two years.
- Certification of the training completed by each individual must be provided to the OHR within 30 days.
- Sexual harassment policy:
- A policy that outlines how to report sexual harassment to management and to the OHR must be filed with the OHR by July 1, 2019.
- The employer must distribute its sexual harassment policy to all employees and post the policy in conspicuous locations by July 1, 2019.
- By the effective date of the law, employers must document instances of sexual harassment reported to management, including whether the reported harasser was a non-manager, a manager, an owner, or an operator. Of concern, there is no applicable time period set forth.
- By July 1, 2019 and annually thereafter, employers must report to OHR the number of sexual harassment complaints received by management, as well as the total number of reported harassers who were non-managers, managers, owners, and operators.
- Notices to tipped workers:
- Employers must provide a written notice to tipped workers regarding certain rights under the law, information about tip-sharing (if applicable or if not), and credit card payments.
- Any tip-sharing policy must be posted.
- Third-party payroll administrators:
- Beginning January 1, 2020, employers (other than hotel employers) must utilize a third-party payroll business to prepare their payroll.
- Pay statements:
- With each wage payment, employers must provide an itemized statement containing specific wage and hours worked information, as well as a new tip declaration form completed by the tipped worker for each pay period that sets out cash tips and credit card tips.
- Quarterly reporting:
- Until January 1, 2020, (non-hotel) employers must submit a quarterly report, no later than 30 days after the end of the quarter, to the Mayor certifying that each employee was paid at least the required minimum wage, including gratuities. The report must contain employee-specific information as to: hours worked per week; total pay, including gratuities; average weekly wage; and the employer’s current tip-out policy. Of note, this requirement appears to apply to all employees of the employer, not just tipped workers.
- After January 1, 2020, the third-party payroll administrator must submit the required. quarterly report for (non-hotel) employers.
- Hotel employers with tipped workers must submit the quarterly report as well.
- The report should be submitted online, unless doing so would be a hardship in which case it will be submitted in hard copy.
- Mandatory Minimum Wage Act Revision Act of 1992 training:
- Owners and operators must receive in person or online training on the Act at least once annually.
- Managers must receive in person training (online is not permitted) Act at least once annually.
- Current employees must be offered in person or online training at least once annually.
- Certification of compliance with this training requirement must be provided by December 31 of each year to the Department of Employment Services.
In addition, the law creates a Tipped Workers Coordinating Council, which is made up of specific representatives for tipped workers, employers and public agencies. The responsibilities of the Coordinating Council are to:
- Improve coordination and functioning of the wage policies for tipped workers, investigations into wage theft involving tipped workers, and reporting mechanisms for tipped workers.
- Conduct regular and anonymous case reviews of all parties involved in claims of wage violations for tipped workers; and
- Develop a protocol to ensure that feedback and recommendations from case reviews are incorporated into the Department of Employment Service’s policies, procedures, practices, training, and decisions to re-examine investigations, when applicable.