February 16, 2020

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How to Comply with D.C. Wage Theft Amendment Act

The D.C. Wage Amendment Act’s broad changes to the District of Columbia’s wage and hour laws greatly increases employer obligations, potential penalties, and liability, while creating a cumbersome administrative hearing process in order to vindicate their rights. 

Most significant for many employers are the enhanced timekeeping requirements for non-exempt employees and wage statement requirements for all employees, including exempt employees. (For details, see our articles, D.C. Wage Theft Prevention Act Amended by Council to Remove Certain Exempt-Employee MandatesAmended D.C. Wage Theft Prevention Act Effective February 26, and Amended D.C. Wage Theft Prevention Act Adds Employer Obligations and Onerous Penalties for Violations.) The D.C. Wage Amendment Act went into effect on February 26, 2015. 

This article discusses recent updates and steps that affected employers should take.

Post Required Notice 

Employers are required to post the Notice of the Act conspicuously in the workplace. Additionally, while the Act does not appear to require it, the D.C. Department of Employment Services (DOES) says that employers also must distribute the Notice to covered employees.

Notice to New Hires, Current Employees

The law, as amended, requires employers to provide pay notice information “in the form of the sample template made available by the Mayor.” On March 3, 2015, D.C. Mayor Muriel Bowser issued pay notice templates. One template is for direct employers and the other is for temporary staffing agencies. Both are available on the D.C. Department of Employment Services (DOES) website in English. DOES should issue the Spanish-language version shortly. The law requires that employers provide the notice to an employee in English and the employee’s primary language if the Mayor has issued a template in that language. Employers who need templates in languages other than English or Spanish should check periodically with the Department of Employment Services.

Contrary to the specific language in the law, as amended, DOES has stated that the Notice issued by the agency is only a template and employers should modify the document as they see fit. Most employers, we anticipate, will use the language in the template, as a cautionary measure. Nevertheless, to the extent the template does not contain information appropriate and necessary to give notice to certain employees (e.g., because of lack of space for salary information or because the outside sales exemption is not listed as a potential basis for exempt classification), employers should add the relevant information.

For direct employers, the law states that notices must be in writing, signed and dated by both the employer and the employee, and retained as proof of compliance. The law allows temporary staffing employers to give notice by email, text, facsimile, or regular mail. DOES has stated that direct employers also may give notice electronically. (Jackson Lewis attorneys have requested clarification from DOES regarding this conflict between the law’s language and DOES’ instructions and are awaiting a response.) Because the notice requirement in the law is relevant not only to DOES investigations, but also to claims brought by plaintiffs, relying on the DOES interpretation may present a risk. 

All notices also must be reissued in amended form any time required information is changed. 

Review Exempt Status of Covered Employees 

The template notice requires not only that employers identify employees who are exempt from minimum wage and overtime, but also identify which exemption applies to each employee (Executive, Professional or Administrative are the options listed). Employers should review carefully the exempt status of each employee receiving a notice to ensure that each such employee indeed is exempt. Employers will need to understand the requirements for each exemption and be prepared to defend their determination for each exempt employee.

Jackson Lewis P.C. © 2020


About this Author

Leslie Stout-Tabackman, Labor Employment Attorney, Shareholder, Jackson Lewis Law Firm

Leslie Stout-Tabackman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She has a broad-based practice counseling and representing employers on compliance with federal and state workplace laws and regulations, and designing and implementing sound practices and policies.

Ms. Stout-Tabackman regularly counsels and represents clients with matters before the U.S. Department of Labor’s (DOL) Wage and Hour Division, including Fair Labor Standards Act (FLSA) issues and prevailing wage and benefits issues arising under the Service Contract Act...

Jacqueline C. Tully, Labor Employment Attorney, Jackson Lewis Law Firm

Jacqueline C. Tully is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Since entering private practice in 2003, she has focused on advising clients on state and federal employment laws, and she represents employers in litigation and administrative procedures.

Ms. Tully focuses her practice on management-side wage and hour law. Her extensive experience both litigating and providing counsel regarding wage and hour matters informs her practical and holistic approach to each practice area.

Ms. Tully’s practice includes providing day-to-day advice and counsel regarding various wage and hour issues including: exempt/non-exempt classification, permissible pay deductions, regular rate calculations, identifying and capturing working time, establishing pay and job duties for tipped employees, and related policies and practices. She has performed preventative compliance reviews and audits ranging from individual employees to enterprise-wide evaluations of the status of thousands of workers. Ms. Tully seeks to understand each employer’s culture, industry, and unique business concerns to develop strategies for change management to minimize risks and enhance compliance.