By Thomas L. McCally, Esq. and Dennis Chong, Esq.
Any employers in the District of Columbia taking advantage of the tipped worker wage credit should take note of some provisions of District law scheduled to take effect any day now. After some initial confusion relating to its passage, the Tipped Wage Workers Fairness Amendment Act of 2018 (D.C. Law 22-196; D.C. Code 2-1411.05a) appears prepared to take effect, and it imposes some important requirements upon any employer who employs at least one tipped employee.
Sexual Harassment Training. The law mandates that any employee of a business that has at least one tipped employee must attend a sexual harassment training course provided by the District, or by a trainer authorized by the District. Tipped employees are required to receive this training within 90 days of hire, and tipped employees hired before October 20, 2020 should complete the training before October 1, 2022. Managers, owners, and operators of businesses employing tipped workers must attend this training at least once every two years. Managers are required to attend these trainings in person; other employees, and owners and operators, may do so online or in person. This law requires that each person file a certificate of completion with the Office of Human Rights within 30 days of the training.
The problem with this mandate is that District has yet to provide a list of trainers certified as qualified to administer this training. As a result, there is presently no way for employers to comply with this provision of the law, and OHR has therefore not yet undertaken any enforcement efforts under this section.
The Office of Human Rights advises that they are working on finalizing the training requirements and expect that it will be implemented in April 2022. Employers of tipped employees should therefore be prepared to send all employees, managers, owners, and operators through this course when the Office of Human Rights releases its list of approved trainers. While it is unclear how strictly the enforcement of this mandate will be in light of the delayed timeline, employers should target getting this training completed within 90 days after the OHR releases its approved list.
Adoption of a Sexual Harassment Policy. The law also mandates that employers of tipped employees have in place a policy setting forth how employees may report sexual harassment and that the policy be both distributed to its employees and posted inconspicuous place in the workplace. OHR requires that employers provide a copy of their policy to OHR and certify that it has been promulgated and distributed. (https://ohr.dc.gov/page/tipped-wage-workers-fairness-act).
Requirement to Report Complaints of Sexual Harassment. Lastly, the law requires that employers of tipped employees provide an annual report reflecting the number of sexual harassment complaints received by the employer in the preceding calendar year, including a breakdown of whether the perpetrator was a non-managerial employee, managerial employee, owner, or operator. The certification form indicates that this report is due on December 31 of each year (https://ohr.dc.gov/page/tipped-wage-workers-fairness-act). The certification form also provides the option of identifying the perpetrator as a customer or “other.”
There does not appear to be any specific penalties for failing to comply with these certification requirements. Nonetheless, we foresee that failure to produce and certify compliance with this statute could provide evidence that an employee could use against a business to support a claim that the employer failed to protect them from on-the-job harassment.
If your business is in the District of Columbia and employs tipped employees but has not yet promulgated and distributed a sexual harassment policy and developed a robust response mechanism in response to sexual harassment claims, Carr Maloney attorneys are available to help. Please contact the authors of this article for assistance.
For questions about these changes, or about any other D.C. employment law, contact the authors of this article or another member of Carr Maloney’s labor and employment team.