Not every worker in your business may receive the same protections and benefits under applicable labor laws. There is a loose classification of workers into either exempt or nonexempt classes. Nonexempt employees enjoy the greatest protection under labor laws, while an exempt person, like an independent contractor, would be afforded the least amount of protection.

When an employer misclassifies someone as exempt, which could be an independent contractor or someone on salary, this strips them of benefits they are due. By reviewing your classifications, you can ensure you are not depriving someone of benefits and protections owed.

Independent Contractors

Some employers try to avoid paying benefits by classifying someone as an independent contractor. Classifying someone as an independent contractor or paying them via a 1099 does not automatically qualify them as such. The courts and the IRS use various tests for determining who is truly an independent contractor. For the IRS, some categories include financial control, behavioral control, and the relationship type.

The more control you have as the employer, the more likely it is that the IRS will see the person as an employee. The economic realities test examines whether the worker is economically dependent on the employer for continued employment to determine if there is an employment relationship. The Fair Labors Standards Act, which governs overtime and minimum wage, relies on the economic realities test.

Salary versus Hourly Employees

Another common misclassification deals with salaried employees. Whether or not an employee is exempt from overtime depends on the employee’s activities, not how they are paid. If you misclassify someone as a salaried employee, you may owe them back wages and overtime. Determining who is a salaried employee is fairly complex in Washington, D.C. as there are local and federal provisions that protect some categories of employees while exempting others.

Minimum Wage in Washington DC

As of July 2018, the current minimum wage in the District of Columbia is $13.25 an hour. This applies to all workers, no matter the size of the company. Under the new law, there will be a progressive increase to $15 an hour that is effective on July 1, 2020. It will keep increasing each year thereafter in proportion to the Consumer Price Index increase.

Tipped employees are subject to a different minimum wage. This year, the wage increased from $3.33 to $3.89 per hour. If the employee’s tips when added to the base minimum wage do not meet the required full minimum wage, you must make up the difference.

If you are paying your employees based on the lower federal minimum wage standard or not meeting your tipped employee’s gap, you could find yourself at risk for a lawsuit.

Washington DC Business Attorney

If you have questions on classifying employees, it’s important to speak with a Washington DC labor and employment lawyer. Contact Tobin O’Connor Concino P.C. at 202-362-5900 to schedule a consultation.

Resource:

does.dc.gov/service/office-wage-hour-compliance

If you run a business, it’s imperative to understand applicable employment laws and have a skilled Washington, DC wrongful termination lawyer who can verify that you follow all federal and state laws, thereby reducing the risk of future litigation.

Elements of a wrongful discharge claim must meet some criteria, such as the discharged person was an employee of the business, he or she was fired or received some other type of disciplinary employment action, and the employee’s protected conduct was the primary reason the employer opted to take disciplinary action.

Wrongful Discharge in District of Columbia

Employers cannot discriminate against an employee based on a variety of factors:

• Race
• Disability
• Age
• Sex
• National origin
• Sexual orientation

These are all protected under federal and state laws that specifically prohibit an employer from taking action against an employee for one of the aforementioned reasons. This can include termination, suspension, demotion, or other disciplinary action.

An employee who was wrongfully discharged could receive compensation for lost earnings and benefits, as well as pain and suffering. In select cases, a judge may award punitive damages against the employer.

Washington, DC wrongful discharge laws prohibit an employer from punishing an employee for his or her conduct that is protected by public policy. This might be something like going to jury duty, filing a workers’ compensation claim, or providing testimony in court under a subpoena. Essentially, the law prohibits an employer from firing an employee because the employee:

• Contacted an authority to report a problem;
• Exercised rights under specific laws; or
• Refused to violate a law.

Depending on the circumstances, employees who are fired because they refuse to take part in illegal or fraudulent practices may have protection under the whistleblower laws.

Whistleblower Protections

Employees who have information that supports a claim of an employer violating laws or causing danger to public safety and health have an obligation to report it. This makes them a whistleblower. There are a number of federal and state laws that protect whistleblowers from retaliation. If you fire an employee because they came forward, they may have a valid claim against you.

Retaining a Washington, DC Employment Law Attorney

If you are facing a wrongful termination claim, it’s imperative you seek out a skilled Washington, DC employment law attorney. Defending a wrongful discharge claim can be complex, and having an experienced attorney can make a huge difference. Tobin O’Connor Concino P.C. represents clients facing wrongful termination claims at both the federal and state level. We handle claims in neighboring Maryland and Virginia as well. Contact our office online or call 202-362-5900 to schedule a 30-minute consultation.

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) protects the rights of persons with disabilities and prohibits discrimination against government employees and private sector employees at companies with 15 or more employees. Alcoholism can be considered a covered disability under the ADA, which means employees may have some protections against discrimination. Protection under the ADA is extended to alcoholics who are in recovery and no longer abusing alcohol. However, someone who is actively drinking is not afforded any protections under the ADA. This also means employers are not required to continue employing someone who is actively still drinking.

To qualify under the ADA, the employee in question must be qualified with a disability. This means the individual must be able to meet job-related requirements and have the ability to perform the job “with or without reasonable accommodation.” This might mean relaxing certain rules so the individual can call their sponsor during work hours, despite a policy of no personal calls during work. Taking a leave of absence or requesting a reduction of weekly hours in order to attend rehab is another example.

Family and Medical Leave Act

The Family and Medical Leave Act, or FMLA, may apply to some employees. This covers those who have been employed for at least 12 months and who have worked 1,250 hours minimum during the 12 months prior to FMLA leave, and are employed at a location with a minimum of 50 employees within a 75-mile radius. Private-sector employers qualify if they are a company who employ at least 50 people or more in 20 or more workweeks in the active calendar year, or the year before. Other places are covered automatically, no matter how many employees they have. These include local and federal government agencies and public or private elementary or secondary schools.

If you qualify and use FMLA leave, you cannot be fired for going to rehab. However, you must request FMLA prior to departure. If you don’t follow standard procedures for requesting leave, you could be fired. Don’t enter a treatment facility and then tell your employer as you won’t be protected then.

Exceptions to These Laws

Federal and state laws do not protect employees who abuse alcohol at work or anyone whose abuse keeps them from doing their job. Employees who drink on the job may be terminated without the accommodations as required under the ADA. While the laws try to provide protections for those going through rehabilitation, there is no reason that any employer should accommodate someone who is drinking while on duty.

Contact an Employment Lawyer

No matter whether you’re the employee or employer, the attorneys at Tobin O’Connor Concino P.C. have years of experience handling labor compliance matters in Washington DC, and surrounding areas. Contact our office to schedule a consultation.

Resource:

dol.gov/whd/regs/compliance/whdfs28.pdf

What is the Universal Paid Leave Amendment Act (UPLA) of 2016?

The new law guarantees eight weeks of paid leave to new parents, six weeks to care for an ailing family member, and two weeks in the event of a personal illness. The act is funded by a 0.62% payroll tax, which is expected to raise $246 million a year. A new government agency would be established to administer the benefits. Rather than come directly from the employer, employee leave claimed under the act would come out of a citywide pool.

The city would reimburse private sector employees for 90% of their first $900 of weekly pay and 50% percent of their remaining weekly pay, with a cap of $1,000/week.

The UPLA became law on April 7, 2017, and applies to private sector employees in the Washington D.C. area. It is scheduled to start dispersing benefits in 2020.

Current Discussions

Under the law that already passed, every employer pays the modest tax into the same fund, which helps level the playing field since small and medium sized companies are said to make up 99% of district employers. The business lobby, who primarily represents large employers, objected to the law prior to it being passed, and now they want to gut it entirely. According to the Washington Post, the business lobby wants each company to pay for their own employees’ family and medical leaves. This means large corporations may not feel much of a pinch, but it would be rather catastrophic for some small and medium sized companies.

Employers would have to form their own individual insurance funds that would have to cover the cost of their employees’ specific leaves. In addition to the financial burden it places on smaller and mid-sized companies, it also has the potential to create an administrative nightmare. Rather than file a claim with a specific government agency as the law stands now, employees would be filing claims for benefits with their employer directly.

WTOP relayed details of additional discussions held during the D.C. City Council meeting on October 11, which included additional suggestions for handling the law. One suggestion was a public insurance program that would fund benefits through a fee levied against employers and employees both. A “hybrid” option mentioned included the idea of smaller businesses participating in a public fund while larger businesses privately fund the benefits directly.

Another change the business lobby is suggesting is to base applicable benefits on past work experience rather than tenure.

When to Call a Washington, D.C., Lawyer

Let our labor & employment lawyers at Tobin O’Connor Concino P.C. handle all your employment law needs. We work extensively within the labor industry and can tackle a variety of legal issues. Please call Tobin O’Connor Concino P.C. at 202-362-5900 or online to schedule a consultation. We are conveniently located inside the Chevy Chase Pavilion, making it easily accessible from the Friendship Heights Metro Station.

Resources:

wtop.com/dc/2017/10/paid-family-leave-law-changing-dc/

washingtonpost.com/opinions/no-repeal-and-replace-for-dcs-paid-leave-law/2017/10/06/29dde572-9ed7-11e7-8ea1-ed975285475e_story.html?utm_term=.67bd1a774dd1

dcist.com/2017/10/wait_didnt_we_already_pass_paid_lea.php

Equal Employment with the EEOC 

The United States Equal Employment Opportunity Commission (EEOC) is a federal agency that is tasked to enforce U.S. laws and regulations that prevent employers from discriminating against employees or potential employees based upon certain protected categories, such as race, sex, age, and more. The related regulations are only applicable to certain companies and organizations. A significant indicator is the number of employees the company has. In other words, if a company has less than a certain number of employees, certain regulations do not apply to that company. However, the applicability of certain regulations can get tricky based upon the type of company you run and how many employees there are. Therefore, it is good practice to follow EEOC regulations regardless of the number of employees your company has.

Labor Rights with the NLRB 

The National Labor Relations Board (NLRB) is also a federal agency. This one seeks to protect the rights of employees to organize for the purpose of gaining good working conditions. Union activities generally fall under the control of the NLRB. Yet the NLRB protects employees, whether or not they are part of a union. If, after a while, your company’s employees are seeking to organize into a union or join an existing one, then you will want to consult an attorney to help you through the process.

Work Conditions with the DOL 

The United States Department of Labor (DOL) is a cabinet-level agency that, among other things, generally seeks to “assure work-related benefits and rights.” Within the DOL, there are numerous agencies, including the Bureau of Labor Statistics (BLS), the Occupational Safety and Health Administration (OSHA), and the Wage and Hour Division (WHD). The WHD is the DOL agency that most employers will interact with regarding matters such as minimum wage, overtime pay, hours worked each week, employment of minors, and more.

Tip of the Iceberg 

These are, of course, only a few of the agencies that a company may encounter after becoming an employer. There are also state agencies, local offices, and other federal agencies. Each of these agencies is tasked with governing certain aspects of the relationship between employers and employees. Most of their primary guidance comes from congressional laws, such as the National Labor Relations Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Family and Medical Leave Act.

Growing companies often need employees to help the company continue to succeed. However, navigating the waters of employment and labor law can get tricky. That is why the Washington D.C. labor and employment attorneys of Tobin O’Connor Concino P.C. are here to make the process easier. Contact our office today.

Resources:

washingtonpost.com/local/dc-politics/yelp-to-open-new-office-in-dc-bringing-500-jobs-to-citys-tech-sector/2017/08/04/636d4fb4-7923-11e7-8839-ec48ec4cae25_story.html?utm_term=.31d0aaf7e9c9

dol.gov/general/aboutdol/mission