The District of Columbia’s Accrued Sick and Safe Leave Act of 2008 (ASSLA), which requires employers to provide paid leave to employees for their own or a family member’s illness as well as in certain other situations, was amended by the Council of the District of Columbia in 2013 and its changes became effective on October 1, 2014.
In expanding the scope of the original law the ASSLA amendments have created a number of additional pitfalls for D.C. employers, such as proper calculation of leave accrual, new recordkeeping requirements, and greater penalties, which require an assessment of existing employment policies. Equally important for employers is the need to address unanswered questions posed by the new amendments and the lack of any regulatory guidance.
The most prominent changes in the ASSLA amendments (1) altered the definitions of employee and employer; (2) changed the time when employees may begin to use accrued leave; (3) heightened recordkeeping requirements; and (4) expanded enforcement and compliance measures.
1. Expanded Definition of “Employee” and “Employer”
Under the ASSLA amendments, the definition of “employee” has been expanded to include, for the first time, restaurant and bar workers who receive regular tips. However, the amendments also clarified that an “employee” under the ASSLA does not include volunteers with educational, charitable, religious, or nonprofit organizations, laypersons working in certain capacities for religious organizations, and casual babysitters.
Additionally, the definition of employer under the ASSLA expanded to include businesses that use temporary staffing agencies, or otherwise have control over wages, hours, or working conditions of covered employees in the District of Columbia. This means that joint employers may now be liable under the ASSLA.
By expanding these definitions, the D.C. Council has now subjected more employees and employers to coverage under the requirements of the ASSLA.
2. Changes to When an Employee May Accrue and Use Leave
As with the ASSLA before the amendments, the sick and safe leave accrued by employees is paid, but the rules governing accrual have changed. With respect to when employees may begin to use accrued leave, the new amendments greatly broadened rights for employees. Now, instead of having to work for one year and 1,000 hours during that same year in order to accrue and use leave, employees only need to be employed for 90 days to use leave. Additionally, employee leave begins to accrue on the first day of employment, and if an employee is transferred—or rehired by the same employer within one year—that employee maintains all of his or her accrued leave.
3. New Recordkeeping Requirements
Employers are also now required to retain for three years records of hours worked and paid leave taken, whereas before the amendments went into effect, the ASSLA did not impose a recordkeeping requirement. If an employer does not maintain adequate records or does not allow an inspection by the mayor or the District of Columbia Auditor, a court will presume that an employer has violated the act if there is a dispute over whether an employee is entitled to paid sick or safe leave, unless the employer is able to prove otherwise.
4. Expanded Enforcement and Penalties
The ASSLA also provides for greater enforcement and penalties against employers. Before the amendments, employers that willfully violated ASSLA were subject to civil penalties of $500 for the first offense, $750 for the second offense, and $1,000 for each subsequent offense. Now, expanded civil penalties and fines can be assessed against employers for violations of the ASSLA. Fines in the case of willful violations of the act by employers have been doubled to $1,000 for the first offense, $1,500 for the second offense, and $2,000 for each subsequent offense. Importantly, there is now a private right of action for individual employees for any violation of the ASSLA whereas there previously was none.
Additionally, under the ASSLA amendments, an employer may now be liable to an employee for back pay for lost wages, reinstatement, or other injunctive relief; compensatory or punitive damages; and reasonable attorneys’ fees and costs. The private right of action can be brought in the Superior Court of the District of Columbia or other court of competent jurisdiction, and has a three-year statute of limitations.
For employees bringing retaliation claims, the amendments also expand the scope of what qualifies as “protected activity” under the ASSLA, including internal complaints made to the employer, filing a complaint with the D.C. Department of Employment Services or a civil complaint, or informing any employee about alleged violations by an employer. This is in addition to the already existing types of protected activity, which consist of opposing unlawful practices under the act, filing a charge or other proceeding, providing testimony in relation to a proceeding, or using paid leave under the act.
Although the amendments to the act are more comprehensive than the 2008 enactment, there are new ambiguities for employers to contend with. Examples of unanswered issues under the amendments include (1) whether there is carryover of accrued leave from year to year; and (2) how to calculate paid sick or safe leave for commission-based employees.
(1) Sick Leave Accrual
The amendments are silent as to whether accrued hours can be carried over. But the D.C. Department of Employment Services, which is responsible for implementing the act, issued its official notice, which stated that “an employee’s accrued paid sick leave carries over from year to year,” and has indicated that it will take the position that the amendments merely added to the ASSLA. It is therefore recommended that employers carry over accrued hours.
(2) Commission-Based Employees
Another outstanding issue not covered by the amendments or regulatory guidance is how employers are to calculate sick leave in the case of employees paid on a commission basis. The ASSLA’s regulatory language requires that employees on sick leave be paid at the same rate as if they were working employers should calculate the average sales per day (or hour, if leave is only used for part of a day) based on past sales, and pay that amount as sick leave for employees who are paid solely on commission.
Given the significant changes to the ASSLA and the higher consequences of noncompliance, employers should review their leave policies carefully with respect to the following areas:
- Confirm that all eligible employees who were not previously covered under the ASSLA will accrue safe and sick leave.
- Ensure that sick and safe leave begins accruing upon employment, is available after 90 days, and carries over from year to year.
- Implement recordkeeping measures tracking hours worked and paid leave taken and continue to maintain records for employees for at least three years.
- Provide commission-based employees paid leave at a calculated rate that takes into account their average sales per day.