As a result of a Washington, D.C., law passed Jan. 13, 2021, certain D.C. employees
displaced during the COVID-19 pandemic will gain reinstatement rights as
their former positions become available. The law also gives certain
employees job protections when their employer changes identity or
experiences a change in control.
Displaced Workers Right to Reinstatement and Retention Amendment Act of
2020 provides that employers and contractors in retail, hospitality or other
covered industries must offer some employees displaced by COVID-19
reinstatement to their previous positions or to a substantially similar
position as positions become available.
Which employers does this law cover?
This law protects only certain workers employed by “contractors” or
“employers” at “covered establishments.” All of these terms have special
meanings under this law.
“Contractor” means an individual or company that employs 25 or more
individuals and who has hired individuals to work in the following
- As food service workers in a hotel, restaurant, cafeteria, apartment
building, hospital, nursing care facility or similar establishment;
- To perform janitorial or building maintenance services in an office
building, institution or similar establishment;
- As nonprofessional employees to perform healthcare or related services in
a hospital, nursing care facility or similar establishment; or
- To perform security services in an office building, institution or
similar establishment (not including special police officers who are armed
and employees performing security services in public schools).
“Employer” means: (1) an entity that employed 50 or more individuals at a
covered establishment on March 1, 2020; or (2) if the covered establishment
is a hotel, an entity that employed 50 or more individuals at a hotel on
Dec. 1, 2019.
“Covered establishment” means any of the following in D.C.: (1) hotels; (2)
restaurants (or other D.C.-licensed public food-service businesses); (3)
taverns, brew pubs, nightclubs or clubs (all as defined by D.C. law); (4)
live performing art, sporting event or other entertainment event venues; or
(5) businesses engaged in the sale of goods to consumers, but not including
Which employees gain rights under this law?
Not every employee is eligible for reinstatement rights. The only employees
eligible are those who ceased working at the covered establishment or for a
contractor for reasons other than voluntary resignation or termination for
cause; and (1) for hotel workers, those whose last date of employment was
between Dec. 1, 2019, and the last day of the public health emergency
declared by mayor’s order in response to the COVID-19 pandemic; or (2) for
non-hotel workers, those whose last date of employment was between March 1,
2020, and the last day of the public health emergency.
However, the following groups of individuals are not eligible for
reinstatement rights: (1) individuals considered “exempt” under the
executive, administrative or professional exemptions under the Fair Labor
Standards Act; (2) individuals who received severance from the employer or
contractor when the individual’s employment ceased (if the employer or
contractor has written, verifiable proof of the severance); and (3)
individuals whose employer or contractor could have terminated the
individual for demonstrable just cause when the individual previously
worked for the employer or contractor.
While the law uses the terms “cause” and “demonstrable just cause,” those
terms are not defined and it is unclear whether the terms have the same
How must the reinstatement be made?
Covered entities must offer eligible employees reinstatement to the
employee’s previous position or to a substantially similar position.
Employers or contractors must make the offer by registered mail or by
email, text or other method that is documented and retained. The offer must
have an acceptance deadline that is no fewer than three calendar days from
the date received. If the employee accepts the offer, he or she must report
to work within seven days, or later if requested by the employer. If more
than one eligible employee is entitled to reinstatement to a particular
position, the employer or contractor may make simultaneous, conditional
offers of reinstatement to eligible employees for the same position, as
long as offers are based on seniority, unless the position is at a
restaurant, tavern, brew pub, nightclub or club. Finally, an employer or
contractor may not hire a new employee for a position until all eligible
employees either have not responded to an offer of reinstatement by the
deadline or have declined the offer.
What happens if the employer changes identity or experiences a change
in controlling interest?
The law also requires employers to retain employees after a change in the
controlling interest or a change in identity, assuming that the business
operations conducted by the new entity are the same as or similar to those
conducted by the former employer. These events include: (1) any sale,
assignment, transfer, contribution or other distribution of a controlling
interest in an employer by consolidation, merger or reorganization of the
employer or of any entity that maintains an ownership interest in the
employer; or (2) any purchase, sale, lease, reorganization or
restructuring, or relocation of the employer’s operation.
If an employer changes identity or controlling interest, the new employer
must retain reinstated employees for 90 days. This 90-day transition period
begins on the date of reinstatement. The new employer must also retain
employees who agree to remain employed by the new employer for a 90-day
transition period beginning on the date of the change in control or the
employer’s change of identity. During the 90-day period, the employer may
not discharge such employees without cause. At the end of the 90-day
period, the employer must perform a written performance evaluation for each
such employee and, if the employee’s performance was satisfactory, the
employer shall offer the employee continued employment.
If the new employer determines that fewer employees are required to work at
the covered establishment than the number required before the change in
controlling interest or identity, the new employer must retain employees by
seniority within job classification. This seniority requirement does not
apply to restaurants, taverns, brew pubs, nightclubs or clubs.
Several questions regarding interpretation of this aspect of the law
remain, but it could have broad-reaching consequences for corporate
transactions involving D.C. establishments or their parent companies.
What notice must an employer provide when it changes identity or
When an employer anticipates a change in controlling interest or identity,
the employer must issue certain notices at least 15 calendar days before
- To parties to the transaction resulting in the change, and to labor
unions representing retained employees or eligible employees, the employer
must provide notice of the name, last known address, date of hire,
position, and text or telephone contact information of each eligible
- To retained employees and eligible employees, and to labor unions
representing retained employees or eligible employees, the employer must
provide notice that the employer anticipates a change in controlling
interest or identity and provide notice of the employee’s right to
reinstatement or retention under this law.
Retaliation is prohibited.
The law prohibits retaliation against an individual who has asserted rights
under, participated in proceedings related to, or opposed a practice
believed to be in violation of the law. Importantly, the law creates a
rebuttable presumption that an adverse action was retaliatory if it occurs
within 60 days after the individual engaged in protected activity. To rebut
the resumption, the employer must produce credible evidence that the sole
reason for the adverse action was a legitimate business reason.
An eligible or retained employee may file a lawsuit to enforce the law. If
the employee prevails, the employee must be awarded back pay, the cost of
lost benefits, and reasonable attorney’s fees and costs. If the employer
violated the law with malice or reckless indifference, the employee may be
awarded treble damages, compensatory damages and punitive damages.
Assuming Congress takes no action, the law should take effect approximately
30 legislative days after Jan. 13, 2021, although typographical errors in
the bill suggest it could be 60 legislative days. The law will expire June
30, 2023, with the anti-retaliation and enforcement provisions expiring on
June 30, 2024.
For assistance in complying with this new COVID-19-related law, or for any
other question related to employment law, contact the authors of this
article or another member of the McGuireWoods labor and employment team.
McGuireWoods Develops Comprehensive Guide on D.C. Employment Statutes
McGuireWoods has developed a
comprehensive online guide to help companies navigate the complex employment laws of Washington, D.C.
The 100-page, fully annotated publication is designed to help human
resources professionals, in-house counsel and small-business owners avoid
pitfalls and obtain answers to common questions about the District’s