In October 2018, the District of Columbia (“D.C.”) Council passed a law called the “Tipped Wage Workers Fairness Amendment Act of 2018” (the “Act”), which had the immediate impact of repealing legislation (“Ballot Initiative 77”) that eliminated the use of a tip credit in D.C. Because the D.C. Council repealed Ballot Initiative 77 through passage of the Act, employers with tipped employees are still permitted to take a tip credit toward meeting minimum hourly wage requirements. However, the Act also imposes certain training, reporting, and notice requirements for all employers of tipped employees. Some of these requirements have already gone into effect, while others require budgetary approval before they will kick in. We review some of the more significant requirements below.
Under the Act, all employers of tipped employees will have to provide sexual harassment prevention training to employees, as well as managers, owners, and operators of the business. Specifically, the D.C. Office of Human Rights (“OHR”) will make available a sexual harassment training course, or will certify a list of providers to give the training, that covers how to respond to and prevent sexual harassment by co-workers, management, or patrons/guests. The Act mandates that employers provide the training to new hires within 90 days of hire unless they received the training within the last two years. All other workers already employed must receive training within two years. Managers, owners, and operators must then receive training every 2 years and all training should be given in-person or online. If the training is given by a certified provider, the employer must submit a certification to the OHR that the training has been completed. Certification is required within 30 business days after completion. Continue reading
the Judge lifted the stay, the EEOC responded that it would not be in a position to accept the EEO-1 Component 2 by May 31, 2019 – the deadline to submit the standard data set collected through the EEO-1 Report (“Component 1”) – and adjusted the deadline to submit Component 2 data to September 30, 2019. Judge Chutkan reluctantly accepted this timeline and mandated that two years of data be collected by this date. Accordingly, the EEOC provided notice that it would be requiring employers to submit pay data for calendar years 2017 and 2018 by or before September 30, 2019.
yee’s sexual orientation. The third case, 
ocrats expressed that pay equity would be a priority in their labor agenda during the 2018 Congressional election cycle and, in February 2019, a proposal intended to further promote fair pay practices was reintroduced in Congress. In addition, just last week, a federal judge lifted the stay on the changes to the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 Report. The revised EEO-1 report would require certain employers to provide pay data by sex, race, and ethnicity to the EEOC, allowing it to more easily detect and track impermissible pay differentials. Though at very different stages in their respective lawmaking processes, the proposed law and final regulation are very clearly intended to address pay inequality and provide additional enforcement tools.
In 1997, the U.S. Supreme Court decided the case of Auer v. Robbins, establishing the standard for what has become known as Auer deference (or Seminole Rock Deference from Bowles v. Seminole Rock and Sand Co. (1945)). This decision and the standard it set is significant for employers because it gives substantial latitude to federal agencies, like the Department of Labor, to interpret their own ambiguous standards. Specifically, in Auer, the Supreme Court held that an Agency’s, in this case the Department of Labor, interpretation of its own standards is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’” In other words, if it’s not clear what is required by the plain language of the standard, the Court will generally defer to the Agency’s own reasonable interpretations of its regulations.
On August 28, 2018, Bryan Jarrett, the Acting Administrator of the DOL’s Wage and Hour Division (the “WHD”) issued two Opinion Letters—one addressing an important consideration facing employers with no-fault attendance policies and another that addresses whether organ donation surgery can qualify as a “serious health condition” under the FMLA for the purposes of taking leave. While the answer to the latter question will likely not surprise anyone who regularly deals with employee requests for leave under the FMLA, the WHD’s opinion regarding whether and how points should be removed from an individual’s record while they are on protected leave does indeed provide much needed clarity on that topic.
As part of an apparent package deal to move through the Senate numerous Trump judicial and other nominees, President Trump on Tuesday re-nominated Democratic member 
rescission, Nathan Mehrens of the Office of the Deputy Assistant Secretary stated, “By rescinding this Rule, the Department stands up for the right of Americans to ask a question of their attorney without mandated disclosure to the government.” This statement addresses one of the most significant sources of conflict over this Rule, both during and after its promulgation, and clearly identifies an important outcome of the DOL’s decision to withdraw it entirely.
This statement has been borne out in Robb’s recent issuance of