Brian W. Steinbach
As we reported last week (see the Act Now Advisory titled “District of Columbia Wage Theft Prevention Act Takes Effect February 26, 2015; Recent Amendments Modify Notice, Timekeeping, Payment, and Other Provisions”), the “Wage Theft Prevention Amendment Act of 2014” (“Act”) (D.C. Act 20-426) became effective on February 26, 2015, along with two emergency amendments.
Among other things, we noted that the Act, as amended, requires employers in the District of Columbia to provide to all new employees at hire, and to all existing employees within 60 days after the Act takes effect, a notice containing certain information concerning the identity of their employer, an employee’s rate of pay and the basis of that rate, and the employee’s regular pay day. A similar notice must be provided whenever the information changes, e.g., if there is a change in pay rate. An employer must retain copies of the notice signed and dated by both the employer and the employee. A slightly different notice must be provided by temporary staffing firms.
We also noted that the mayor’s office was directed to provide sample templates within 60 days, but had not yet done so, and that it might be necessary for employers, in the meantime, to create their own form of English notice to new hires for immediate use. However, much sooner than expected, the Department of Employment Services (“DOES”) has posted on its wage and hour compliance website the English version of the templates for both employers and temporary staffing firms, as well as some general guidance. Accordingly, it is no longer necessary for employers to create their own form or modify existing forms to include the required information (although they are still free to do so if they cover all the required information). We recommend that, to the extent possible, D.C. employers use the DOES’s template to ensure that they are in compliance.
The two-page form for employers has, among other things, boxes at the top that should be checked to indicate whether the form is being used at hire, for distribution to current employees as is required within 90 days, or for a change in pay rate (which includes new assignments at different rates). There is a section requiring employers to state whether a tip credit is claimed and whether there is a tip pool and, if so, how it operates. The template provides space for listing multiple rates, if applicable. There also is a section to indicate if the employee is being paid the minimum wage, the Living Wage Rate, or an “Employer Determined Wage Rate.”
Also note that the employer form requires an actual statement of the applicable overtime rate, not just that overtime is at time and a half. This may be somewhat problematic where there are multiple pay rates and the employer pays based on the weighted average, rather than at a single rate. Where this is the case, we recommend that, until the DOES provides clarification, employers type in the area below the listing of multiple rates that they will pay overtime at the rate of time and one-half the weighted average regular rate.
The form for temporary staffing firms is similar, but it has checkboxes at the top indicating whether the form is being used at an initial interview or for a particular assignment, provides for flexibility as to the statement of pay frequency and pay day, and requires inclusion of information regarding the particular assignment and the identity of the legal entity responsible for workers’ compensation insurance.
The DOES has Spanish language versions available on request, but, at this point, those templates have not been posted on the DOES website. No other foreign language templates are yet available.
The DOES also has made available on its site useful general guidance regarding the Act. In addition, it has scheduled informational webinars that anyone can join after registering. For information about the webinars, see the DOES’s message on the wage and hour compliance website, and click on the links regarding the calendar of events and how to register for an upcoming session.
What Employers Should Do Now
In addition to the actions noted in our prior Advisory, employers should do the following:
- Immediately begin using the new template with all new hires.
- Contact the DOES for the Spanish template, if applicable.
- Prepare forms for all existing employees for distribution by May 27, 2015.
- Begin preparing and using forms for all changes, particularly any change in pay rates.
- Continue to monitor the DOES’s wage and hour compliance website for further developments, including the new notice summarizing the Minimum Wage Revision Act, which is supposed to be available within 60 days.
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For more information about this Advisory, please contact: