The District of Columbia enacted important legislation which mandates sexual harassment training for tipped employees (and associated harassment reporting requirements for employers with tipped employees). The new law also mandates postings in the workplace as well as notice to employees of various employment laws.

Overview

By way of background, the District of Columbia, in 2018 enacted the Tipped Wage Worker Fairness Amendment Act (Act). The Act contained a provision which required that D.C. provide funding before the new law would take effect. This summer, D.C. repealed the funding restriction. As a result, the Act took effect on October 30, 2020. Key components of the Act are summarized below.

Employers of Tipped Employees Must Conduct Workplace Harassment Training

The Act requires that the D.C. government provide a sexual harassment training course for employees of businesses that have tipped employees (or a certified list of providers who may provide such training).

New employees who were hired before the law became effective must be trained within two years of the effective date, either online or in person. New employees who are hired after the new law became effective must receive the training within 90 days of hire unless the employee participated in training within the prior two years.

Business operators, owners, and managers must be trained every two years. Like employees, business operators and owners may participate in the training either online or in person. Managers, on the other hand, must be trained in person. The law imposes upon employers a requirement to submit a certificate of training to the D.C. Office of Human Rights within 30 days after each employee, manager, owner or operator has completed the training.

Reporting Requirements for Training of Tipped Employees

Importantly, the Act imposes upon employers of tipped employees certain reporting requirements as follows:

• File with the D.C. Office of Human Rights a copy of the employer’s policy outlining how employees can report incidences of sexual harassment concerns to management and to the D.C. government.
• Distribute the sexual harassment policy to employees and post the policy in a conspicuous place accessible to all employees in or about the employer’s premises.
• Document incidences of sexual harassment reported to management, including whether the reported harassment was by an owner, operator, managerial employee, or non-managerial employee.
• Report to the D.C. Office of Human Rights on a yearly basis the number of sexual harassment allegations reported to management, and the total number of reported harassers who were owners, operators, managerial employees or non-managerial employees.

Reporting Requirements for Postings and for Information Which Must Be Provided to Employees

Within 120 days of the effective date (October 30, 2020) of the Act, the Mayor’s Office is required to create a poster which summarizes the rights of D.C. employees under numerous D.C. employment statutes, and also create a website which clearly and precisely describes the rights of employees under each of these employment laws.

Thereafter, employers are required to print copies of the information posted by the District of Columbia on its website and organize it into a single source, such as a binder. Employers must make a copy of the binder available at every location where the summary poster is exhibited.

Furthermore, the law requires employers to update the binder at least monthly to make sure that information is accurate, up-to-date, and matches the information that is on the website of the Mayor’s Office. Significantly, the D.C. government can impose upon employers a fine of $100.00 for each day that an employer fails to comply with the binder and posting requirements.

Takeaways

The Act has important consequences for employers in the District of Columbia, including the following:

• It sends a powerful message to employers that D.C. takes harassment training seriously.
• Even though the Act presently applies only to employers of tipped employees, it should serve as a clarion call to all employers — for profit and not for profit — to conduct regular harassment training by experienced trainers for employees in an effective and comprehensive way.
• D.C. employers need to review their sexual harassment policies to ensure compliance with the Act.
• The new legislation shifts to employers a significant portion of the responsibility for educating employees about the existence of various employment laws, and includes significant sanctions for the failure to do so.
• Employers should review their existing insurances, including Employment Practices Liability Insurance (EPLI), to make sure that they contain sufficient protections.
• Employers should train managers on how to handle complaints of harassment and how to address harassment when they observe it.
• Employers should ensure that they have a mechanism in place for establishing that the poster requirements are satisfied.
• Employers should also ensure that they have a process in place for compliance with the binder requirements of the Act, including the monthly updating requirements.

Marc R. Engel is an employment attorney experienced in providing successful strategies for managing employees and preventing employment claims. For more information on what your company should consider when it comes to coronavirus in the workplace, contact Marc at 301-657-0184 or [email protected].