The emergency amendments relate to timekeeping requirements for exempt employees and statutory language regarding pay notice requirements.

On February 3, the Council of the District of Columbia passed emergency and temporary amendments to the Wage Theft Prevention Act of 2014 (the Act). The amendments address timekeeping requirements for exempt employees contained in the original Act as well as certain statutory language regarding pay notice requirements. The amendments await D.C. Mayor Muriel Bowser’s signature before going into effect. The Act is projected to become effective on February 26 after a 30-day congressional review, and the amendments will apply immediately. The Act implements new notice and record-keeping requirements for D.C. employers, amends several existing employment laws, and increases penalties for violations of those laws.

Pay Notice Requirements

Within 90 days of the Act’s effective date, D.C. employers are required to provide each employee with a written notice that contains specific wage information, including the employee’s regular pay rate, the basis of that rate (e.g., hourly, biweekly, or monthly), and the regular designated payday. Employers are required to provide an amended notice to each employee any time that any of the employee’s or employer’s listed information changes.

The Act previously contained a requirement that employers provide the notice in employees’ primary language. That requirement was clarified in the February 3 amendments to state that employers must provide employees with written notice in both English and a non-English language if two requirements are met: (1) the mayor has issued a sample notice template in the second language and (2) the employer knows that the second language is the employee’s primary language or the employee requests a notice form in that second language.

Once the Act is effective, employers must immediately provide all new employees with written notice upon hiring. In addition, the Act sets forth specific notice requirements for temporary staffing firms, requiring that they provide notice at either the initial interview or time of hire for employees and those who are assigned to perform work or provide services for another organization.

The mayor will issue a template of the notice for employers to use within 60 days of the Act’s effective date. However, this could still leave a gap where employers are required to provide notice to new employees before a template is available.

Clarification Regarding Exempt Employees

The Act amends the Wage Payment and Wage Collection Law (WPWCL) to broaden the definition of “employee” to include exempt employees. This definition’s revision caused exempt employees to originally be subject to the same wage payment requirements as nonexempt employees. The February 3 amendments expressly carved out exempt employees from the requirement that employers pay all wages to an employee at least twice per calendar month. However, some new requirements for exempt employees remain, including a requirement that they be paid wages earned the day after termination or, upon resignation, on the next regular payday or within seven days from the date of resignation, whichever is earlier.

Amended Timekeeping Requirement

The Act amends existing timekeeping requirements for employers and requires employers to keep records of the precise time worked each day and each workweek by employees. The Act originally included this provision for exempt and nonexempt employees. The amendments now specify that the new timekeeping requirements apply only to non-exempt employees.

Posting Requirement

The Act requires that employers post a copy or summary of the Minimum Wage Revision Act and the new notice requirements in a conspicuous and accessible place. However, employers are not liable for failure to post the notice if the mayor has failed to provide the notice to employers within 60 days of the Act’s effective date.

Expansion of Remedies and Penalties

The Act contains several provisions that make it easier for a covered employee to pursue remedies against his or her employer, including a private right of action for violations of the WPWCL, Living Wage Act, Minimum Wage Revision Act, and Accrued Sick and Safe Leave Act.

The penalties for a violation of the Act are severe and include new penalties for negligent violations as well as willful violations, increased penalties, civil penalties in some cases, and the loss or suspension of an employer’s business licenses.

Anti-retaliation Provisions

The Act broadens existing anti-retaliation provisions of D.C. law by prohibiting discrimination or retaliation against any employee and creates a rebuttable presumption of retaliation if an employer, or any person acting on behalf of an employer, takes any adverse action against an employee within 90 days of the employee engaging in protected activity.

Implications

The Act has important implications for employers in the District of Columbia. Employers should carefully review all wage and payment procedures to ensure that their policies comply with D.C. laws, particularly those regarding pay notice and recordkeeping requirements that become effective upon the Act’s effective date. It is critical that employers take steps now to be in compliance when the law is projected to become effective in late February.