D.C. Law 21-266. Wage Theft Prevention Clarification and Overtime Fairness Amendment Act of 2016.
AN ACT
To amend An Act To provide for the payment and collection of wages in the District of Columbia to clarify that the Office of Administrative Hearings judges will hear wage theft cases, to exempt an employer from being required to pay wages to bona fide executive, administrative, and professional employees at least twice during each calendar month, to clarify that subcontractors include intermediate subcontractors, to clarify that general contractors and clients of temporary staffing agencies may waive their right to indemnification, to clarify that the Attorney General for the District of Columbia can bring civil enforcement actions in court and inspect business records, to incorporate record-keeping requirements from the Minimum Wage Act Revision Act of 1992, to allow businesses to challenge a demand for business records before a neutral decision-maker, to revise criminal penalties for violations of the act, to clarify the remedies and processes for civil and administrative actions to enforce wage theft laws, to clarify deadlines pertaining to service of wage theft complaints and that membership organizations may bring civil actions on behalf of their members, to clarify the Mayor's authority to issue rules, and to require the Mayor to issue rules identifying relevant prevailing federal standards for record-keeping requirements; to amend the Minimum Wage Act Revision Act of 1992 to remove the exclusion of parking lot and garage attendants from receiving the protections of the District's minimum and overtime laws, to require the Mayor to issue rules identifying relevant prevailing federal standards for record-keeping requirements, to exempt employers from keeping precise time records for bona fide executive, administrative, professional non-hourly employees, to allow businesses to challenge a demand for business records before a neutral decision-maker, to clarify when an employer or a temporary staffing firm must provide notices to an employee in a second language, to require the Mayor to publish translations of notices and sample templates online in all the languages required by the Language Access Act of 2004, to clarify how the Mayor shall make certain information available to employers, to clarify that general contractors and clients of temporary staffing agencies may waive their right to indemnification, and to clarify the remedies and procedures available in civil and administrative actions; to amend the Wage Theft Prevention Amendment Act of 2014 to repeal an obsolete provision; to amend the Accrued Sick and Safe Leave Act of 2008 and the Living Wage Act of 2006 to require the Mayor to issue rules identifying relevant prevailing federal standards for record-keeping requirements; and to provide that all rules, forms, and regulations issued pursuant to the Wage Theft Prevention Amendment Act of 2014 and to any emergency and temporary amendments to that act shall remain in force until repealed or superseded.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Wage Theft Prevention Clarification and Overtime Fairness Amendment Act of 2016".
Sec. 2. An Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 976; D.C. Official Code § 32-1301 et seq.), is amended as follows:
(a) Section 1 (D.C. Official Code § 32-1301) is amended as follows:
(1) Paragraph (1) is redesignated as paragraph (1B).
(2) New paragraphs (1) and (1A) are added to read as follows:
"(1) "Administrative Law Judge" means an administrative law judge of the Office of Administrative Hearings, established by
"(1A) "Attorney General" means the Attorney General for the District of Columbia, as established by
(b) Section 2 (D.C. Official Code § 32-1302) is amended by striking the phrase "Every employer shall pay all wages earned to his employees at least twice during each calendar month, on regular paydays designated in advance by the employer;" and inserting the phrase "An employer shall pay all wages earned to his or her employees on regular paydays designated in advance by the employer and at least twice during each calendar month; except, that all bona fide administrative, executive, and professional employees (those employees employed in a bona fide administrative, executive, or professional capacity, as defined in section 7-999.1 of the District of Columbia Municipal Regulation (7 DCMR § 999.1)) shall be paid at least once per month;" in its place.
(c) Section 3 (D.C. Official Code § 32-1303) is amended as follows:
(1) Paragraph 5 is amended to read as follows:
"(5) A subcontractor, including any intermediate subcontractor, and the general contractor shall be jointly and severally liable to the subcontractor's employees for the subcontractor's violations of
(2) Paragraph 6 is amended by striking the phrase "Unless otherwise agreed to by the parties, the temporary staffing firm shall indemnify the employer as a result of the temporary staffing firm's violations" and inserting the phrase "Except as otherwise provided in a contract between the temporary staffing firm and its client, the temporary staffing firm shall indemnify its client for any wages, damages, interest, penalties, or attorneys' fees owed as a result of the temporary staffing firm's violations" in its place.
(d) Section 6 (D.C. Official Code § 32-1306) is amended as follows:
(1) Subsection (a)(2) is amended to read as follows:
"(2)(A) The Attorney General, acting in the public interest, including the need to deter future violations, may bring a civil action in a court of competent jurisdiction against an employer or other person violating
"(i) Reasonable attorneys' fees and costs;
"(ii) Statutory penalties equal to any administrative penalties provided by law; and
"(iii) On behalf of an aggrieved employee:
"(I) The payment of back wages unlawfully withheld;
"(II) Additional liquidated damages equal to treble the back wages unlawfully withheld; and
"(III) Equitable relief as may be appropriate.
"(B) The Attorney General shall not in any action brought pursuant to this section be awarded an amount already recovered by an employee.".
(2) Subsection (b) is amended as follows:
(i) The existing text is designated as paragraph (1).
(ii) A new paragraph (2) is added to read as follows:
"(2) The Attorney General shall have the power to investigate whether there are violations of
(2) Subsection (c) is amended to read as follows:
"(c) A person to whom a subpoena authorized by this section has been issued shall have the opportunity to move to quash or modify the subpoena in the Superior Court of the District of Columbia. In case of failure of a person to comply with any subpoena lawfully issued under this section, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, it shall be the duty of the Superior Court of the District of Columbia, or any judge thereof, upon application by the Mayor or the Attorney General, to compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from the Court or a refusal to testify therein.".
(3) New subsections (d) and (e) are added to read as follows:
"(d)(1) Every employer subject to any provision of
"(A) The name, address, and occupation of each employee;
"(B) A record of the date of birth of an employee under 19 years of age;
"(C) The rate of pay and the amount paid each pay period to each employee;
"(D) The precise time worked each day and each workweek by each employee, except for employees who are not paid on an hourly basis and who are exempt from the minimum wage and overtime requirements under
"(E) Any other records or information as the Mayor may prescribe by regulation as necessary or appropriate for the enforcement of the provisions of
"(2)(A) Any records shall be open and made available for inspection or transcription by the Mayor, the Mayor's authorized representative, or the Office of the Attorney General upon demand at any reasonable time. An employer shall furnish to the Mayor, the Mayor's authorized representative, or the Office of the Attorney General on demand a sworn statement of records and information upon forms prescribed or approved by the Mayor or Attorney General.
"(B) No employer may be found to be in violation of subparagraph (A) of this paragraph unless the employer had an opportunity to challenge the Mayor or Attorney General's demand before a judge, including an administrative law judge.
"(e) Every employer shall furnish to each employee at the time of payment of wages an itemized statement showing the:
"(1) Date of the wage payment;
"(2) Gross wages paid;
"(3) Deductions from and additions to wages;
"(4) Net wages paid;
"(5) Hours worked during the pay period; and
"(6) Any other information as the Mayor may prescribe by regulation.".
(e) Section 7(a) (D.C. Official Code § 32-1307(a)) is amended to read as follows:
"(a)(1) An employer who negligently fails to comply with the provisions of
"(A) For the first offense, an amount per affected employee of not more than $2,500; and
"(B) For any subsequent offense, an amount per affected employee of not more than $5,000.
"(2) An employer who willfully fails to comply with the provisions of
"(A) For the first offense, be fined not more than $5,000 per affected employee, or imprisoned not more than 30 days; or
"(B) For any subsequent offense, be fined not more than $10,000 per affected employee, or imprisoned not more than 90 days.
"(3) The fines set forth in paragraphs (1) and (2) of this subsection shall not be limited by
(f) Section 8 (D.C. Official Code § 32-1308) is amended as follows:
(1) Subsection (a)(1) is amended to read as follows:
"(a)(1)(A) Subject to subparagraph (B) of this paragraph, a person aggrieved by a violation of
"(i) The payment of any back wages unlawfully withheld;
"(ii) Liquidated damages equal to treble the amount of unpaid wages;
"(iii) Statutory penalties; and
"(iv) Such legal or equitable relief as may be appropriate, including reinstatement of employment, and other injunctive relief.
"(B) No person in any action brought pursuant to this section shall be awarded any amount already recovered by an employee.
"(C) Actions may be maintained by one or more employees, who may designate an agent or representative to maintain the action for themselves, or on behalf of all employees similarly situated as follows:
"(i) Individually by an aggrieved person;
"(ii) Jointly by one or more aggrieved persons;
"(iii) Consistent with the collective action procedures of the Fair Labor Standards Act, 29 U.S.C. § 216(b);
"(iv) As a class action;
"(v) Initially as a collective action pursuant to the procedures of the Fair Labor Standards Act, 29 U.S.C. § 216(b), and subsequently as a class action;
"(vi) By a labor organization or association of employees whose member is aggrieved by a violation of
"(vii) By the Attorney General for the District of Columbia, pursuant to
(2) Subsection (b)(4) is amended by striking the word "Mayor" and inserting the word "District" in its place.
(g) Section 8a (D.C. Official Code § 32-1308.01) is amended as follows:
(1) Subsection (a) is amended by striking the phrase "A signed complaint" and inserting the phrase "A physically or electronically signed complaint" in its place.
(2) Subsection (c) is amended as follows:
(A) Paragraph (1) is amended by striking the word "deliver" and inserting the word "serve" in its place.
(B) Paragraph (2) is amended by striking the word "receipt" and inserting the phrase "receipt of service" in its place.
(C) Paragraph (3) is amended by striking the word "mailed" and inserting the word "served" in its place.
(D) Paragraph (4) is amended to read as follows:
"(4) If a respondent admits the allegation, the Mayor shall issue an administrative order requiring the respondent to provide restitution, including the payment of any back wages unlawfully withheld, liquidated damages equal to the amount of unpaid wages, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief, and which may include statutory penalties. The Mayor or Attorney General may also proceed with an audit or subpoena to determine if the rights of employees other than the complainant have also been violated.".
(E) Paragraph (5) is amended by striking the word "mailed" and inserting the word "served" in its place.
(F) Paragraph (6) is amended as follows:
(i) Strike the word "delivered" and insert the word "served" in its place.
(ii) Strike the phrase "pay any unpaid wages, compensation, liquidated damages, and fine or penalty owed and requiring the respondent to cure any violations." and insert the phrase "provide restitution including the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief." in its place.
(G) Paragraph (7) is amended to read as follows:
"(7) The Mayor shall issue an initial determination within 60 days after the date the complaint is served. The initial determination shall set forth a brief summary of the evidence considered, the findings of fact, the conclusions of law, and an order requiring the respondent to provide restitution, including the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief. The initial determination shall be provided to both parties and set forth the losing party's right to appeal under this section or to seek other relief available under
(H) Paragraph (9) is amended by striking the word "filing" and inserting the word "serving" in its place.
(3) Subsection (e)(1) is amended by striking the phrase "administrative law judge shall issue an order based on the findings from the hearing. The".
(4) Subsection (f)(2) is amended to read as follows
"(2) Appropriate relief shall include the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief.".
(5) Subsection (m)(4) is amended by striking the word "Mayor" and inserting the word "District" in its place.
(6) A new subsection (n) is added to read as follows:
"(n) Appeals of any order issued or fine assessed under
(h) A new section 8b is added to read as follows:
"Sec. 8b. Interpretation of fees.
"No inference shall be drawn, or precedent established, based on the provisions in
(i) A new section 10b is added to read as follows:
"Sec. 10b. Rules.
"The Mayor, pursuant to
(j) Section 212(a) (D.C. Official Code § 32-1331.12(a)) is amended by striking the phrase "3 years, in or about its place of business," and inserting the phrase "3 years or the prevailing federal standard at the time the record is created, which shall be identified in rules issued pursuant to
Sec. 3. The Minimum Wage Act Revision Act of 1992, effective March 25, 1993 (D.C. Law 9-248; D.C. Official Code § 32-1001 et seq.), is amended as follows:
(a) Section 5(b) (D.C. Official Code § 32-1004(b)) is amended as follows:
(1) Paragraph (3) is amended by adding the word "or" at the end.
(2) Paragraph (5) is repealed.
(b) Section 8 (D.C. Official Code § 32-1007) is amended to read as follows:
"Sec. 8. Investigatory powers of Mayor.
"(a) The Mayor and the Attorney General shall each have the power to administer oaths and require by subpoena the attendance and testimony of witnesses, the production of all books, registers, and other evidence relative to any matters under investigation, at any public hearing, or at any meeting of any committee or for the use of the Mayor or the Attorney General in securing compliance with
"(b) In case of disobedience to a subpoena, the Mayor or the Attorney General may invoke the aid of the Superior Court of the District of Columbia to require the attendance and testimony of witnesses and the production of documentary evidence.
"(c) In case of contumacy or refusal to obey a subpoena, the Court may issue an order to require an appearance before the Mayor or the Attorney General, the production of documentary evidence, and the giving of evidence.
"(d) A person or an entity to whom a subpoena has been issued may move to quash or modify the subpoena.
"(e) Any failure to obey the order of the Court may be punished by the Court as contempt.".
(c) Section 9 (D.C. Official Code § 32-1008) is amended as follows:
(1) Subsection (a) is amended as follows:
(A) Paragraph (1) is amended as follows:
(i) The lead-in language is amended striking the phrase "or whatever the prevailing federal standard is," and inserting the phrase "or the prevailing federal standard at the time the record is created, which shall be identified in rules issued pursuant to this act," in its place.
(ii) Subparagraph (D) is amended to read as follows:
"(D) The precise times worked each day and each workweek by each employee, except for employees who are not paid on an hourly basis and who are exempt from the minimum wage and overtime requirements under
(B) Paragraph (2) is amended to read as follows:
"(2)(A) Any records shall be open and made available for inspection or transcription by the Mayor, the Mayor's authorized representative, or the Office of the Attorney General upon demand at any reasonable time. An employer shall furnish to the Mayor, the Mayor's authorized representative, or the Office of the Attorney General on demand a sworn statement of records and information upon forms prescribed or approved by the Mayor or Attorney General.
"(B) No employer may be found to be in violation of subparagraph (A) of this paragraph unless the employer had an opportunity to challenge the Mayor or Attorney General's demand before a judge, including an administrative law judge.".
(2) Subsection (c) is amended by striking the phrase "shall furnish to each employee at the time of hiring a written notice, both in English and in the employee's primary language, containing the following information:" and inserting the phrase "shall furnish to each employee at the time of hiring, and whenever any of the information contained in the written notice changes, a written notice in English; provided, that if the Mayor has made a sample template available in a language other than English that the employer knows to be the employee's primary language or that the employee requests, the employer shall furnish the written notice to the employee in that other language also. The notice required by this subsection shall contain:" in its place.
(3) Subsection (d) is amended as follows:
(A) Paragraph (1) is amended to read as follows:
"(1)(A) Within 90 days after February 26, 2015, and within 30 days of any change to the information contained in the prior written notice, an employer, except in those instances where notice is provided pursuant to
"(B) To show proof of compliance with these notice requirements, an employer shall retain either copies of the written notice furnished to employees that are signed and dated by the employer and by the employee acknowledging receipt or electronic records demonstrating that the employee received and acknowledged the notice via email or other electronic means.".
(B) Paragraph (3) is amended by striking the phrase "subsections (b) and (c) of".
(4) Subsection (e) is amended by adding a sentence at the end to read as follows:
"On or before February 26, 2017, the Mayor also shall publish online a translation of the sample template in any languages required for vital documents pursuant to
(d) Section 9a (D.C. Official Code § 32-1008.01) is amended as follows:
(1) Subsection (a)(1) is amended by adding a sentence at the end to read as follows:
"The notice shall be provided in English and, if the Mayor has made available a translation of the sample template in a language that is known by the temporary staffing firm to be the employee's primary language or that the employee requests, the temporary staffing firm shall furnish written notice to the employee in that other language also.".
(2) The lead-in language to subsection (b) is amended to read as follows:
"(b) When a temporary staffing firm assigns an employee to perform work at, or provide services for, a client, the temporary staffing firm shall furnish the employee a written notice in English, and in another language that the employer knows to be the employee's primary language or that the employee requests, if a sample template has been made available pursuant to subsection (c) of this section, of:
(3) Subsection (c) is amended to read as follows:
"(c) On or before February 26, 2017, the Mayor shall publish online a translation of the sample template of the notice required by this section in any language required for vital documents pursuant to
(e) Section 12(d)(1)(C) (D.C. Official Code § 32-1011(d)(1)(C)) is amended by striking the phrase "or whatever the prevailing federal standard is, whichever is greater" and inserting the phrase "or the prevailing federal standard at the time the record is created, which shall be identified in rules issued pursuant to this act, whichever is greater," in its place.
(f) Section 12a (D.C. Official Code § 32-1011.01) is amended by striking the phrase "liquidated damages of not less than $1,000 and not more than $10,000" and inserting the phrase "all appropriate relief provided for under section 10a of An Act To provide for the payment and collection of wages in the District of Columbia, approved August 3, 1956 (70 Stat. 979; D.C. Official Code § 32-1311)" in its place.
(g) Section 13 (D.C. Official Code § 32-1012) is amended as follows:
(1) Subsection (a) is amended by striking the phrase "according to" and inserting the phrase "according to, and with all the remedies provided under," in its place.
(2) Subsection (b)(2) is amended by striking the phrase "The court may award an amount of liquidated damages less than treble the amount of unpaid wages, but not less than the amount of unpaid wages. In any action commenced to recover unpaid wages or liquidated damages, the employer shall demonstrate" and inserting the phrase "The court may award an additional amount of liquidated damages less than treble the amount of unpaid wages, but not less than the amount of unpaid wages, only if the employer demonstrates" in its place.
(3) Subsection (c) is amended to read as follows:
"(c) A subcontractor, including any intermediate subcontractor, and the general contractor shall be jointly and severally liable to the subcontractor's employees for the subcontractor's violations of
(4) Subsection (f) is amended to read as follows:
"(f)(1) When a temporary staffing firm employs an employee who performs work on behalf of or to the benefit of a client pursuant to a temporary staffing arrangement or contract for services, both the temporary staffing firm and the client shall be jointly and severally liable for violations of
"(2) The District, the employee, or the employee's representative shall notify the temporary staffing firm of the alleged violations at least 30 days before filing a claim for a violation against a client who was not the employee's direct employer.
"(3) Except as otherwise provided in a contract between the temporary staffing firm and its client, the temporary staffing firm shall indemnify its client for any wages, damages, interest, penalties, or attorneys' fees owed as a result of the temporary staffing firm's violations of
(h) Section 13a (D.C. Official Code § 32-1012.01) is amended to read as follows
"Administrative complaints filed for violations of
Sec. 4. Conforming amendments.
(a) Section 11b(a) of the Accrued Sick and Safe Leave Act of 2008, effective February 22, 2014 (D.C. Law 20-89; D.C. Official Code § 32-131.10b(a)), is amended by striking the phrase "3 years," and inserting the phrase "3 years or the prevailing federal standard at the time the record is created, which shall be identified in rules issued pursuant to this act, whichever is greater," in its place.
(b) Section 107 of the Living Wage Act of 2006, effective June 8, 2006 (D.C. Law 16-118; D.C. Official Code § 2-220.07), is amended by striking the phrase "3 years from the payroll date" and inserting the phrase "3 years or the prevailing federal standard at the time the record is created, which shall be identified in rules issued pursuant to this act, whichever is greater, from the payroll date" in its place.
(c) Paragraph 11 of section 105.3 of Title 12A of the District of Columbia Municipal Regulations (12A DCMR § 105.3(11)) is amended as follows:
(1) Strike the phrase "general contractor or construction manager," and insert the phrase "general contractor, construction manager, and each subcontractor," in its place.
(2) Strike the phrase "general constructor or construction manager is selected" and insert the phrase "general contractor, construction manager, or any subcontractor is selected" in its place.
Sec. 5. Continuation of rules, forms, and regulations.
All rules, forms, and regulations issued pursuant to the Wage Theft Prevention Amendment Act of 2014, effective February 26, 2015 (D.C. Law 20-157; 61 DCR 10157), and any rules, forms, and regulations issued pursuant to any like succeeding emergency and temporary acts, includingthe Wage Theft Prevention Clarification Temporary Amendment Act of 2016, effective April 6, 2016 (D.C. Law 21-101; 63 DCR 2220), and the Wage Theft Prevention Correction and Clarification Temporary Amendment Act of 2016, effective November 30, 2016 (D.C. Law 21-170; 63 DCR 12600), shall continue in effect according to their terms until lawfully amended, repealed, or superseded.
Sec. 6. Repealers.
(a) Section 7 of the Wage Theft Prevention Amendment Act of 2014, effective February 26, 2015 (D.C. Law 20-157; 61 DCR 10157), is repealed.
(b) The Wage Theft Prevention Correction and Clarification Temporary Amendment Act of 2016, effective November 30, 2016 (D.C. Law 21-170; 63 DCR 12600), is repealed.
(c) The Revised Wage Theft Prevention Clarification Temporary Amendment Act of 2016, enacted on December 6, 2016 (D.C. Act 21-562; 63 DCR 15051), is repealed.
