United States: Additional Changes To The D.C. Wage Theft Prevention Act

Last Updated: February 6 2015
Article by Douglas B. Mishkin and Sandi R. Pessin Boyd

February 3, 2015 Emergency Amendment

On February 3, 2015, the Washington, D.C. Council passed an emergency amendment (and sent an identical temporary amendment to Congress for congressional review) that further amends the D.C. Wage Theft Prevention Amendment Act of 2014 (Wage Theft Act). Introduced by the council chairman, this amendment makes the following changes to the pending law:

  • Employers now must keep time records for certain exempt employees (i.e., seamen, railroad employees, car salesmen, parking lot and parking garage attendants, and airport employees who voluntarily switch shifts with other employees). Previously, neither the Minimum Wage Revision Act nor the Wage Theft Act required employers to keep time records for any exempt employees.
  • The D.C. mayor's office must provide sample notices in languages in addition to English. Employers must provide notices to employees in other languages only if the mayor's office provides a sample notice in that language and (1) the employer knows the second language is the employee's primary language, or (2) the employee requests a notice in a different language.
  • As before, the Wage Payment and Wage Collection Act will not require employers to pay any exempt employees twice a month; once a month is sufficient. Prior to this most recent emergency amendment, the Wage Theft Act only excluded exempt employees from the twice-a-month requirement if the employer had a custom of doing so or if the employee's contract permitted.

December 2, 2014 Emergency Amendment

Previously, on December 2, 2014, the D.C. Council passed an emergency amendment (and sent a temporary amendment to Congress for congressional review) to the Wage Theft Act making the following changes that survive the February 3, 2015 emergency amendment:

  • Repealing the applicability of the Wage Theft Act to violations occurring as of October 1, 2014. This means employers will only be held liable for violations of the Wage Theft Act after the Act's enactment.
  • Exempting employers from joint and several liability for violations by their subcontractors or temporary staffing firms if a contract exempting them from joint liability is already in place when the law goes into effect.
  • Clarifying that civil actions under the Act may only be brought by employees (e.g., not by a labor union or other entity).
  • Amending the Act to state that an employer cannot be held liable for compliance with the new notice requirements until after the mayor's office has issued a sample notice.

Outstanding Issues

The emergency amendments passed thus far fail to address a number of outstanding issues. Although employers are not required to issue notices to employees until the mayor issues a sample notice, it is unclear how much time employers will have following issuance of that sample to provide notices to their employees. The original structure of the Wage Theft Act suggests that employers would have 30 days to comply after the mayor issues a sample notice, but the emergency amendments leave this unclear. Also left unaddressed is a question of whether an employer is permitted to issue notice to an employee by electronic mail, and whether an electronic signature confirming an employee's receipt of that notice will be sufficient to satisfy the law.

Coming Up...

Under D.C. law, the emergency amendment goes into effect immediately upon passage by the council and signature by the mayor, and expires in 90 days. The temporary act is sent to the mayor for signature and then sent to the U.S. Congress, where it becomes effective following a 30-day congressional review period. Once effective, the D.C. Council has 225 days to pass a permanent amendment. Therefore, in the next few weeks the council likely will introduce a final amendment to the Wage Theft Act that will incorporate the changes made in both emergency amendments, and could potentially address any additional outstanding issues. We intend to remain involved in this process and will keep you advised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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