On December 8, 2020, the D.C. Council approved a budget that allowed for several important provisions of The Tipped Wage Workers Fairness Clarification Amendment Act of 2018 (the “Act”) to finally go into effect. It is important to note that these provisions are actually a collection of overlapping and at times confusing legislation spanning several years. For that reason, additional guidance from the D.C. Council may be required before we can fully understand the relevant requirements. We will continue to update our readers as more information becomes available.
At this time, the following appear to be the most important provisions for employers:
Posting Requirements
By January 29, 2021, the Mayor was required to create a website that states the rights and benefits to which employees are entitled under certain specified D.C. employment and anti-discrimination laws such as the Living Wage Act, the Human Rights Act, the D.C. Family and Medical Leave Act, etc., however, it appears that no such website has been created yet. Once created, this website will also contain information advising employees how to submit labor-related or anti-discrimination complaints to the Mayor and identify the resources available to those who suspect violations of their rights protected by D.C. labor and anti-discrimination laws. The Mayor must also provide employers with a poster identifying this website, along with contacts within the Department of Employment Services (DOES) and the Office of the Attorney General (OAG) where employees may file a complaint or obtain additional information about their rights, along with a list of D.C. employee rights.
Once created, employers must display this poster in a visible location, including but not limited to, in each breakroom and by each time clock. Employers must also print copies of the information posted on the Mayor’s website and keep it in a single source, such as a binder. The binder must be stored at each location where posters are displayed. The information in these binders must be updated at least monthly and be identical to the information provided on the website.
Employers who comply with these posting requirements will be excused from the individual posting requirements of the employment and anti-discrimination laws covered on the Mayor’s website. Employers will be fined $100 for each day that they fail to meet the above requirements.
Coordinating Council
The Act also provides for the formation of a Tipped Workers Coordinating Council to promote a high-quality response to cases of wage theft or unfair labor practices involving tipped workers. Specifically, the Council is charged with improving the coordination of wage policies, investigations into wage theft and reporting mechanisms; conducting case reviews of all parties involved in claims of wage violations; and ensuring that feedback from case reviews are incorporated into DOES policies and procedures.
The Council is to be made up of representatives of select D.C. agencies and organizations that engage in policy or advocacy for tipped workers. Seats on the Council will also be reserved for a representative from both the Restaurant Association of Metropolitan Washington and the Hotel Association of Washington, D.C.
Quarterly Wage Reporting Requirements for Restaurants with Tipped Workers
The Act also provided that third-parties who process payroll for restaurant employers paying the tipped minimum wage must submit a quarterly wage report to the Mayor. This report must be submitted for the preceding calendar quarter no later than 30 days after the end of each calendar quarter. The report must also certify that each tipped worker was paid at least the required minimum wage, including tips, as well as the tipped worker’s name; average hourly wage each week during the quarter; total hours worked at or above the tipped minimum wage per week; gross wages received per week; and total gratuities received per week. For more information and to file the Tipped Wage Reports, employers should visit this website.
Employers with tip sharing must either include a copy of their tip-sharing policy with each quarterly wage report, or submit the policy directly to the Mayor no later than 30 days after the end of the calendar quarter. Note: if the tip-sharing policy is not submitted by the deadline, it is presumed the employer did not have a tip-sharing policy in place. The Mayor is charged with performing random audits after each quarterly report deadline to ensure compliance.
Sexual Harassment Training for all Tipped Employees
The Act also now requires the following of all employers who pay the tipped minimum wage:
- New employees must be provided in-person or online training within 90 days of hire unless the employee has participated in training within the past two years;
- Current employees must be provided with in-person or online training within two years after training has been approved by DOES;
- All managers must attend in-person training at least once every two years;
- Owners and operators must attend in-person or online training at least once every two years.
Employers are also required to establish sexual harassment prevention policies that include clear incident reporting procedures. Employers must also provide copies of these policies to DOES. Outstanding questions remain as to the compliance deadlines for these new requirements. Shulman Rogers attorneys will continue to monitor developments and provide additional information as it becomes available.
Minimum Wage Act Training
Lastly, employers of tipped employees must also offer employees annual mandatory training on the Minimum Wage Act Revision Act of 1992. Managers must attend an in-person training on the requirements of the Minimum Wage Act Revision Act annually; business owners and operators must complete annual training either in-person or online. Employers must certify to the DOES that these training requirements have been met.
Other Restaurant Industry Legal News
In other restaurant industry news, new tip pooling regulations that were issued by the Department of Labor (“DOL”) on December 30, 2020 and were supposed to go into effect on March 1, 2021 are now “frozen” by President Biden’s regulatory freeze and are under review by the new administration. These include new regulations that would have permitted back-of-the-house employees to participate in tip pools so long as everyone in the tip pool is paid the regular minimum wage and new regulations that would have obliterated the 80/20 rule, making clear that tipped workers can be paid the tipped minimum wage for all hours of work, regardless of the amount of time they spent on non-tip-generating tasks. In light of President Biden’s freeze, the DOL also withdrew opinion letters related to the same, stating that they had been issued prematurely because they were based on rules that had not yet taken effect. The Shulman Rogers Labor & Employment team will continue to monitor these regulations to see how the new administration will address them.
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JOIN US FOR A Q&A SESSION- TOP 6 EMPLOYMENT LAW PROBLEMS EVERY FOOD AND BEVERAGE EMPLOYER SHOULD HAVE ON THEIR RADAR
Shulman Rogers and Payroll Network invite you to a Virtual Q&A Session:
Top 6 Employment Law Problems Every Food and Beverage Employer Should Be Aware Of
Date: February 23, 2021
Time: 10:00 AM – 10:45 AM EST
Even with a global pandemic significantly disrupting the food and beverage industry, that has not stopped employment laws and regulations from changing almost daily, making it difficult to manage compliance while just trying to stay afloat. And often, what you don’t know can hurt your business the most, especially when it is already struggling.
HR Managers and restaurant owners won’t want to miss this interactive program. Click HERE for more information.
Meredith S. Campbell
Chair Employment and Labor Group
Co-Chair Corporate Investigations, Governance & Risk Management
Email mcampbell@shulmanrogers.com T(301)255-0550
