As a reminder, by Dec. 31, 2022 all Washington D.C. employers that take a tip credit must comply with D.C.’s Tipped Wage Workers Fairness Amendment Act (TWWF). As explained below, by the end of this year covered employers must also maintain an anti-sexual harassment policy and submit certain documentation related to prior allegations of sexual harassment to the District of Columbia’s Office of Human Rights (DCOHR).

The Tipped Wage Workers Fairness Amendment Act

In 2018, the District of Columbia Council enacted TWWF. This law created a comprehensive set of training, notice, recordkeeping and reporting obligations for certain D.C. employers. The TWWF applies to all D.C. employers with at least one employee who is paid in accordance with D.C.’s tipped minimum wage law. For more information on the various requirements in the TWWF, please see our previous alert. After a significant delay in implementation, primarily due to the COVID-19 pandemic, the DCOHR and the District of Columbia’s Department of Employment Services (DOES) have now set deadlines for TWWF compliance.

Requirements under the TWWF

1. Sexual Harassment Policy and Sexual Harassment Complaints

Employers covered by the TWWF must maintain an anti-sexual harassment policy that outlines how employees can report allegations of sexual harassment to both the employer and the DCOHR. Employers must file a copy of this policy with the DCOHR, distribute the policy to employees, and post the policy on its premises in a conspicuous place accessible to all employees.

Covered employers must also document all instances of alleged sexual harassment reported to management on an annual basis. The law requires that such documentation include information on whether the alleged harasser was a non-managerial employee, manager, owner or operator of the business. Although it is not specified in the law, the DCOHR also seeks information on whether the alleged harasser was a customer or an individual who otherwise falls outside the above categories.

Pursuant to these requirements, by 11:59 p.m. ET on Dec. 31, 2022, covered employers must submit a certified report containing the following:

• A copy of the employer’s anti-sexual harassment policy and the calendar years such policy was in effect
• The number of employees and managers who received a copy of the sexual harassment policy in calendar years 2020 and 2021
• Copies of any signed acknowledgements indicating that employees received copies of the sexual harassment policy in calendar years 2020 and 2021
• The total number of sexual harassment claims reported to management in calendar years 2020 and 2021
• A breakdown of how many sexual harassment claims were alleged in calendar years 2020 and 2021, including details such as whether the harasser was a non-managerial employee, manager, owner, operator, customer or other

The certified report must be submitted to the DCOHR using its online form, which is located here. Covered employers must submit their certified reports for the 2022 calendar year by 11:59 p.m. ET on March 1, 2023.

2. Training

Further, the TWWF requires that employees receive sexual harassment training either from a DCOHR-certified trainer or by using DCOHR’s training materials. The sexual harassment training must be provided as follows:

• Newly hired employees must receive the training, in person or online, within 90 days of hiring, unless they received such training within the past 2 years.
• Owners and operators of the business and non-managerial employees must receive the training, either in person or online, at least once every two years.
• Managers must receive the training in person at least once every two years

It has been unclear when covered employers must complete the first sexual harassment training and submit the required certification. The DCOHR listed its certified trainers in August 2022 and advised that employers to make a good faith attempt to comply by Dec. 31, 2022. However, the DCOHR recently indicated that the compliance deadline would be extended to Aug. 31, 2023 with a public announcement of the new date forthcoming.

The TWWF further requires covered employers to provide annual training on D.C.’s wage and hour laws to managers (in person) and owners and operators (in person or online). Covered employers must also offer this training to non-managerial employees (in person or online) at least once per year, but non-managers are not required to attend such training. In addition, by Dec. 31 of each year, covered employers must submit a certification of compliance to DOES. However, the training criteria and deadlines to complete the first wage and hour training session have not yet been announced.

3. Notice to Employees

Employers covered by the TWWF are also required to display a poster regarding D.C.’s labor and anti-discrimination laws. The poster must be displayed in a conspicuous place accessible to all employees on the employer’s premises. If an employer has multiple breakrooms or timekeeping systems, the employer is required to display the poster at each of those locations. A copy of the notice can be found here. While it is unclear when the DCOHR will begin to enforce this posting requirement, covered employers are advised to display this poster as soon as possible.

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