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Employment Law Alert – Montgomery County and D.C. “Ban the Box”

December 9, 2014

Montgomery County and D.C. “Ban the Box”

Montgomery County is the latest local jurisdiction to “ban the box.” Montgomery County’s law prohibits private employers from making inquiries about an applicant’s criminal record on an employment application or through another medium (such as a consumer reporting agency) until the conclusion of the applicant’s first interview. Montgomery County’s bill goes into effect on January 1, 2015.

The D.C. Council passed a similar measure in July.  According to D.C.’s ban the box legislation, employers cannot ask about a potential employee’s criminal convictions until a conditional offer of employment has been made. D.C.’s bill will become effective following a Congressional review period, as required by the District of Columbia Home Rule Act. The D.C. Council projects that D.C.’s ban the box legislation will go into effect on December 11, 2014.  

New Pay Requirements for
Government Contractors

On April 8, 2014, President Obama signed Executive Order 13665 to encourage greater pay transparency by prohibiting federal contractors and subcontractors from discharging or otherwise discriminating against their employees and job applicants for discussing, disclosing or inquiring about compensation

On September 15, 2014, the OFCCP released a Notice of Proposed Rulemaking that, if adopted, will implement the mandates set forth in Executive Order 13665.  According to the proposal, a “pay transparency rule” will cover federal contractors and subcontractors, as well as federally assisted construction contractors and subcontractors, that hold a contract or contracts exceeding an aggregate value of $10,000 in a 12-month period entered into – or modified on or after – the rule’s effective date.  

The proposal offers two defenses to the prohibition against “pay secrecy” rules. The first defense generally permits (with some exceptions) covered entities to discipline an employee who, as part of his or her essential job functions, has access to the compensation information of other employees or applicants, and the employee discloses such compensation information to individuals who do not otherwise have access to it. This defense was provided with human resource (HR) personnel in mind. 

The second defense protects employers from liability when the employer takes action against an employee for violating legitimate workplace rules while engaging in otherwise permitted “compensation” discussions. 

The public has until December 16, 2014 to submit written comments to the OFCCP regarding the proposal. 

D.C. Earned Sick and Safe Leave Act Amendments
Go Into Effect

Revisions to the District of Columbia’s Accrued Sick and Safe Leave Act adopted last February, referred to as the Earned Sick and Safe Leave Act of 2013 (the “Amendment”), are now in force.  The District of Columbia Department of Employment Services (“DOES”)  published a revised “Official Notice” that must be posted in affected workplaces across the District of Columbia. The Sick and Safe Leave Act’s central requirement to provide paid sick and safe leave to eligible employees employed in D.C. has not changed (for a review of the Sick and Safe Leave Act, see our Employment Alert here). However, the Amendment has changed certain aspects of the Sick and Safe Leave Act. 

In particular, the Amendment created these six (6) new provisions and/or obligations: 

  1. Accrual and Availability of Leave. A covered employee accrues paid leave when employment begins, and may access paid leave after 90 days of service. Previously, there was a delay before accrual was required.
  2. Tipped Restaurant and Bar Employees. Employers must provide tipped restaurant wait staff and bartenders with at least one hour of covered paid leave for every 43 hours worked, up to a maximum of five days per calendar year. Employers need only provide D.C. minimum wage to these employees while on leave, with no consideration of the amount of tips the employee might have received during that time of leave. The Amendment removed the Act’s prior exclusion of tipped staff from coverage.
  3. Retention of Accrued Leave. The Amendment repeals the Act’s provision that limited an employee’s right to carry over his or her accrued sick leave from year to year. The Amendment also removes an employee’s right to receive a payout of the employee’s accrued sick leave upon termination.
  4. New Retaliation Protections. There is now a rebuttable presumption of retaliation if the employer takes adverse  action against an employee in response to actions taken pursuant to this law.
  5. Record-Keeping Requirements. D.C. employers must retain records for three years documenting the number of hours worked by an employee and any paid leave used by the employee. The Office of the District of Columbia Auditor must be able to access these records. Failure to maintain records creates a rebuttable presumption that the employer violated the Act. 
  6. Enforcement and Penalty Provisions. Employees can bring a civil action or an administrative action through the DOES for backpay, reinstatement, or injunctive, compensatory, or punitive relief. The employer is liable for $500 for every day an employee was denied leave and required to work. The employer is also liable for attorney’s fees in case a violation is found. If the violation is willful there is a civil penalty of $1,000 for the first offense, $1,500 for the second offense, and $2,000 for the third and each subsequent offense. A violation of the notice-posting requirement is considered a “willful violation.”


    Gregory D. Grant

    Meredith “Merry” Campbell

    Joy C. Einstein