Earlier this year, the District of Columbia City Council passed a law to amend the Accrued Sick and Safe Leave Act. The amendments are funded in the 2015 fiscal year budget and will go into effect starting October 1, 2014.
This Act already provides paid accrued leave to employees in the District for the purposes of (a) caring for their own or a family member’s illness, or (b) seeking legal protections available for domestic violence or sexual assault. However, the changes to the Act can have a significant impact on employers with covered employees in the District, particularly in terms of potential sanctions for noncompliance.
McGuireWoods’ 2010 WorkCite article regarding the earlier regulations issued for the Act may be accessed here.
A major change to the Accrued Sick and Safe Leave Act is the expansion of definitions for “employee” and “employer” covered by the Act.
The Act applies to all employers with covered employees in D.C. (although the benefits available to employees vary depending on the size of the employer). Employees who meet the minimum work-hour requirements of the Act generally are covered if (a) they are employed in more than one location and spend more than fifty percent (50%) of their working time in the District; or (b) their employment is based in the District and they regularly spend a substantial part of their time working in the District and do not spend more than fifty percent (50%) of their work-time in any particular state.
Under the new amendments to the Act, the definition of “employee” now includes restaurant and bar employees who regularly receive tips. Until now, such employees were exempted from the Act. However, the Act retains previous exceptions to the definition of “employee” for healthcare workers who choose to participate in a premium pay program, independent contractors and students. In addition, the D.C. Council added new exceptions to the definition of “employee” in the amendments to expressly exclude:
- volunteers with educational, charitable, religious or nonprofit organizations;
- laypersons who work for religious organizations; and
- casual babysitters who work in the residence of their employer.
As for the definition of an “employer,” the Act now will include employers who employ individuals through an agent such as a temporary services or staffing agency, or who otherwise exercise control over the wages, hours or working conditions of covered employees in the District.
Accrued Leave Provisions
As before, the minimum accrued amount of paid leave under the Act depends on an employer’s number of employees in the District of Columbia.
- An employer with 100 or more employees must provide one hour of paid leave for every 37 hours a covered employee works, not to exceed seven days a year.
- An employer with 25 to 99 employees must provide one hour of paid leave for every 43 hours a covered employee works, not to exceed five days a year. This is also now the minimum accrued leave amount for restaurant and bar employees who regularly receive tips.
- An employer with 24 or fewer employees must provide one hour of paid leave for every 87 hours a covered employee works, not to exceed three days a year.
Under the new amendments, employees begin to accrue paid leave from their first day of employment. However, covered employees can access such leave only after 90 days of employment.
Another significant change in the Act ensures that employees who transfer or are rehired by the same employer do not lose previously accrued leave. Specifically, if an employee transfers to a separate location for the same employer within the District, or transfers out of the District and back in for the same employer, then that employee is entitled to all previously unused paid leave accrued during his or her employment in the District. Also, when an employee is rehired within one year of separation from the same employer, he or she is entitled to all accrued, unused paid leave immediately upon restarting employment. If an employee is rehired after more than a year of separation, he or she is considered a new employee for the purposes of the Act.
The amendments to the Act require employers to retain employment records showing hours worked by employees and paid leave taken for a period of three years. These records also need to be made available to certain District officials for review upon reasonable notice. If an issue arises as to an employee’s entitlement under the Act and the employer does not have the required records to show hours worked and accrued leave taken, there is a rebuttable presumption that a violation of the Act occurred.
Strengthened Anti-Retaliation and Enforcement Provisions
The Act already contains anti-retaliation measures. The new amendments add several more examples of protected activity to the Act, such as raising concerns with the employer, filing a civil complaint, filing a complaint with the Department of Employment Services, and informing any person of an employee’s rights under the Act. The amendments also make clear that taking adverse action against an employee within 90 days of any protected activity raises a rebuttable presumption that a violation of the Act occurred.
The most significant amendments to the Act are likely the enforcement provisions. Most notably:
- There will be a private right of action for alleged violations of the Act with a three year statute of limitations.
- The Act now also allows for $500 in additional damages to the employee for each day that an employer denies the employee the ability to use paid leave.
- In the event of a willful violation of the Act, there will be a civil penalty of $1,000 for the first offense, $1,500 for the second offense and $2,000 for the third and any subsequent offense.
The amendments to the Act also clarify that, in the event of either a class-action complaint or an action brought by the mayor against the employer, damages may include (1) back pay for lost wages, (2) reinstatement or other injunctive relief, (3) compensatory or punitive damages including at least $500 for every day an employee who was denied access to paid leave was required to work, and (4) reasonable attorneys’ fees and costs.
With the amendments to the Accrued Sick and Safe Leave Act becoming effective on October 1, 2014, employers in the District should ensure that they are calculating accrual of paid leave under the Act for all covered employees, starting with the first day of employment. Employers also should ensure that employees who transfer or separate from the employer for less than a year do not waive or lose any previously accrued leave. Employers also should take care to adhere to the Act’s new recordkeeping obligations. Otherwise, the recent amendments provide for enhanced penalties for employers who do not comply with the requirements of the new amendments.
For further information or assistance in complying with the Accrued Sick and Safe Leave Act, please reach out to your McGuireWoods contact, the authors or any other member of the firm’s labor and employment group.