§ 32-1308.01 — Administrative actions on employee complaints.

District of Columbia § 32-1308.01

• Jurisdiction: District of Columbia
• Title 32: Labor.
• Ch. 13: Wages and Workplace Fraud.
• Subch. I: Payment and Collection of Wages.

Text

(a) When an employee requests administrative enforcement of this chapter, the Minimum Wage Revision Act, the Living Wage Act, and the Sick and Safe Leave Act, the Mayor shall investigate and make an initial determination regarding alleged violations. A physically or electronically signed complaint for non-payment of earned wages shall be filed with the Mayor, no later than 3 years after the last date upon which the violation of this chapter, the Minimum Wage Revision Act, the Sick and Safe Leave Act, or the Living Wage Act is alleged to have occurred or the date on which the employer provided the complainant with actual or constructive notice of the employee’s rights, whichever is later.

(b) If the alleged non-payment of earned wages violation is ongoing at the time of the filing of the complaint, the complaint may also seek recovery of amounts that accrue after the filing of the complaint. With regard to amounts that were due at the time the complaint was filed, an aggrieved employee may recover only those amounts that became lawfully due and payable within the 3-year period before the date the complaint was filed. This period is tolled during any period that the employer fails to provide the complainant with actual or constructive notice of the employee’s rights or on other equitable grounds.

(1) The complaint shall set forth the facts upon which it is based with sufficient specificity to determine both that an allegation of non-payment of earned wages has been made and that the other criteria stated in this section have been met.

(2) In addition to the other requirements of the complaint set forth in this section, the complaint shall be sworn and shall include or attach the following information:

(A) The complainant’s name, address, and telephone number (or alternate address or telephone number if the complainant desires);

(B) Sufficient information to enable the Mayor to identify the employer through District records, such as the employer’s name, business address, license plate number, or telephone number; and

(C) An explanation of the alleged violations, which may include the approximate or actual dates the violations occurred, the estimated total dollar amount of unpaid wages, and an explanation of how the total estimated amount of unpaid wages was calculated.

(3) The Mayor shall request additional information from the complainant to:

(A) Amend a charge deemed insufficient;

(B) Cure technical defects or omissions;

(C) Clarify or amplify allegations; or

(D) Ensure that any violations related to or arising out of the subject matter set forth or attempted to be set forth in the original charge are adequately alleged in the complaint

(1) The Mayor shall serve the complaint and a written notice to each respondent upon completion. The written notice shall set forth the damages, penalties and other costs for which the respondent may be liable, the rights and obligations of the parties, and the process for contesting the complaint.

(2) The Mayor shall also include an additional notice to employees stating that an investigation is being conducted and providing information to employees on how they may participate in the investigation. Upon receipt of service, the respondent shall post this additional notice for a period of at least 30 days.

(3) Within 20 days of the date the complaint and written notice are served, the respondent shall:

(A) Admit that the allegations in the complaint are true and pay to complainant any unpaid wages or compensation and liquidated damages owed and pay to the Mayor any fine or penalty assessed; or

(B) Deny the allegations in the complaint and request that the agency make an initial determination regarding the allegations in the complaint.

(4) If a respondent admits the allegation, the Mayor shall issue an administrative order requiring the respondent to provide relief, including the payment of any back wages unlawfully withheld, liquidated damages equal to the amount of unpaid wages, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief, and which may include statutory penalties. The Mayor or Attorney General may also proceed with an audit or subpoena to determine if the rights of employees other than the complainant have also been violated.

(5) If a respondent denies the allegations, the respondent must notify the Mayor of that decision and may provide any written supporting evidence within 20 days of the date the complaint is served.

(6) If a respondent fails to respond to the allegations within 20 days of the date the complaint is served, the allegations in the complaint shall be deemed admitted and the Mayor shall issue an initial determination requiring the respondent to provide relief including the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief.

(7) The Mayor shall issue an initial determination within 60 days after the date the complaint is served. The initial determination shall set forth a brief summary of the evidence considered, the findings of fact, the conclusions of law, and, where the Mayor finds in favor of the complainant, the initial determination shall require the respondent to provide relief, including the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief. The initial determination shall be provided to both parties and set forth the losing party's right to appeal under this section or to seek other relief available under this chapter .

(8) In addition to determining whether the complainant has demonstrated that the employer has violated one or more provisions of this chapter, or the Minimum Wage Revision Act, the Sick and Safe Leave Act, or the Living Wage Act, by applying the presumption required by § 32-1305(b) , the Mayor shall make an initial determination of whether the complainant is entitled to additional unpaid earned wages due to other District laws such as the Living Wage Act, the Sick and Safe Leave Act, or the Minimum Wage Revision Act.

(9) If the Mayor fails to issue an initial determination within 60 days of the serving of a complaint, the complainant shall have a right to request a formal hearing before an administrative law judge.

(A) Upon issuance of an initial determination or administrative order, not issued as a result of conciliation, the Mayor shall notify the parties, by certified mail, of their right to file for a formal hearing before an administrative law judge pursuant to subsection (e) of this section.

(B) If a party does not timely file for a formal hearing before an administrative law judge pursuant to subsection (e) of this section, the initial determination shall be deemed a final administrative order and shall be enforceable pursuant to subsection (g) of this section.

(1) The Mayor shall work with the parties in an attempt to conciliate. Any conciliation agreement shall be between the respondent and the complainant and shall be reduced to an administrative order requiring the respondent to pay any unpaid wages, compensation, liquidated damages, and fine or penalty owed and requiring the respondent to cure any violations.

(2) When an administrative order issued as a result of a conciliation agreement is subsequently breached, the Mayor or the complainant may enforce the administrative order pursuant to this section.

(1) Within 30 days of the issuance of the initial determination or an administrative order, not issued as a result of conciliation, or within 30 days of receiving notice of a right to file for a formal hearing before an administrative law judge under this subsection, whichever is later, a party may file for a formal hearing before an administrative law judge. If the initial determination was not issued within the 60-day period specified in subsection (c)(7) of this section, a complainant may file for a formal hearing before an administrative law judge. An administrative law judge shall conduct a hearing to determine whether a violation of this chapter or the Minimum Wage Revision Act, the Living Wage Act, or the Sick and Safe Leave Act has occurred. The hearing shall be scheduled within 30 days of a request, except that the administrative law judge may grant each party one discretionary continuance due to hardship or scheduling of up to 15 days. The administrative law judge may grant any other request for continuance only for good cause.

(2) The administrative law judge shall have the authority to administer oaths, issue subpoenas, compel the production of evidence, receive evidence, and consolidate 2 or more complaints into a single hearing where such complaints involve sufficiently similar allegations of fact to justify consolidation.

(3) All parties shall appear at the hearing, with or without counsel, and may submit evidence, cross-examine witnesses, obtain issuance of subpoenas, and otherwise be heard. Testimony taken at the hearing shall be under oath, and a transcript shall be made available at cost to any individual unless the case is sealed. Testimony may also be given and received by telephone.

(4) The burden of proof by a preponderance of the evidence shall rest upon the complainant, but shall shift to the respondent when the following conditions are met:

(A) A respondent failed to keep records of an employee’s hours worked, or records of compensation provided to an employee are imprecise, inadequate, missing, fraudulently prepared or presented, or are substantially incomplete; and

(B) A complainant presents evidence to show, as a matter of just and reasonable inference, the amount of work done or the extent of work done or what compensation is due for the work done.

(5) Where the conditions in paragraph 4(A) and (B) of this subsection are met, the respondent must present compelling evidence of the precise amount of work performed and exact compensation promised or present compelling evidence to negate the reasonableness of the inferences drawn from the complainant’s evidence. If the respondent fails to meet this burden, the administrative law judge shall award damages based on the complainant’s evidence and may award approximate damages where necessary.

(6) If a respondent does not appear after receiving notice of a hearing pursuant to this section, the administrative law judge shall proceed to hear proof of the complaint and render judgment accordingly. If, after receiving notice of a hearing pursuant to this section, the complainant does not appear, the administrative law judge shall dismiss the complaint without prejudice.

(1) At the conclusion of the hearing, the administrative law judge shall issue a decision setting forth a brief summary of the evidence considered, findings of fact and conclusions of law, and an order detailing the relief determined appropriate to the parties and their representatives within 30 days of the hearing.

(2) Appropriate relief shall include the payment of any back wages unlawfully withheld, liquidated damages equal to treble the amount of unpaid wages, statutory penalties, reasonable attorney fees and costs, and other legal or equitable relief as may be appropriate, including reinstatement in employment, and other injunctive relief.

(3) The decision and order shall be considered a final administrative ruling, enforceable in a court of competent jurisdiction, and reviewable as provided by applicable law.

(1) Respondents shall comply with the provisions of any order or conciliation agreement affording relief and shall furnish proof of compliance to the Mayor as specified in the order. If the respondent refuses or fails to comply with the administrative order or conciliation agreement, the Mayor or the complainant may record a lien and may sue in the Superior Court of the District of Columbia for a remedy, enforcement, or assessment or collection of a civil penalty.

(2) The Superior Court of the District of Columbia shall have no jurisdiction to adjudicate the merits of the underlying claim, but is limited to enforcement of the administrative order or conciliation agreement.

(3) The Mayor may, at the request of an employee, take an assignment in trust for the assigning employee of such wages and join in a proceeding or action such claims against the same employer as the Mayor considers appropriate, and the Mayor shall have power to settle and adjust any such claim or claims on such terms the Mayor may consider just; provided, that no settlement for an amount less than the amount awarded by the administrative law judge shall be agreed to without the complainant’s consent. The Mayor shall maintain regular contact with the complainant concerning the procedural status of any legal actions brought under the assignment and the complainant shall have the right to inquire about and receive information regarding the status of the enforcement action.

(h) If a respondent fails to timely comply with an administrative order or conciliation agreement that has not been stayed, the Mayor shall:

(1) Assess an additional late fee equal to 10% of the total amount owed for each month any portion of the award and any already accrued late penalty remains unpaid;

(2) Require the respondent to post public notice of their failure to comply in a form determined by the Mayor; and

(3) Consider any unpaid amount to be owed the District as past due restitution on behalf of an employee and suspend any licenses issued to do business in the District as set forth in subsection (i) of this section. Penalty amounts, including civil and criminal penalties and late fees, and any wages, damages, interest, costs, or fees awarded to an employee or representative shall be a lien upon the real estate and personal property of the person who owes them. The lien shall take effect by operation of law on the day immediately following the due date for payment, and, unless dissolved by payment, shall as of that date be considered a tax due and owing to the District, which may be enforced through any and all procedures available for tax collection.

(i) The Mayor shall:

(1) Deny an application for any license to do business issued by the District if, during the 3-year period before the date of the application, the applicant admitted guilt or liability or has been found guilty or liable in any judicial or administrative proceeding of committing or attempting to commit a willful violation of this chapter, the Minimum Wage Revision Act, the Living Wage Act, or the Sick and Safe Leave Act, or any other District, federal, or state law regulating the payment of wages. This subparagraph shall not apply to any person whose final administrative adjudication or judicial judgment or conviction was entered before February 26, 2015; and

(2) Suspend any license to do business issued by the District if the licensee has failed to comply with an administrative order or conciliation agreement issued under this section. Once alerted to an alleged lack of compliance, the Mayor shall notify the business that its license will be suspended in 30 days until the business provides proof that it is in full compliance with the administrative order or conciliation agreement, including any requirements for accelerated payment, interest, or additional damages in the event of a breach. Before the license suspension, the business will have an opportunity to request a hearing to be held pursuant to the Administrative Procedure Act.

(j) The administrative remedies established in this chapter shall be in addition to any other criminal, civil, or other remedies established by law that may be pursued to address violations of this chapter and shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered.

(k) Any person may be represented by counsel in any proceeding under this chapter. Any party, including corporate entities, as an alternative to counsel, may be assisted by a non-lawyer authorized by that party in accordance with 1 DCMR § 2835, except where such representation is prohibited by law or disallowed by the administrative law judge for good cause.

(1) Any party may request that a subpoena be issued by the administrative law judge. Witnesses summoned by subpoena shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the Superior Court of the District of Columbia. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by that party.

(2) Within 10 days after service of a subpoena upon any person, the person may petition the administrative law judge to quash or modify the subpoena. The administrative law judge shall grant the petition if he or she finds that the subpoena:

(A) Requires appearance or attendance at an unreasonable time or place;

(B) Requires production of evidence that does not relate to the matter; or

(C) Does not describe with sufficient particularity the evidence to be produced, that compliance would be unduly onerous, or for other good reason.

(3) In the case of refusal to obey a subpoena, the administrative law judge or any party may seek enforcement of a subpoena issued under the authority of this chapter by filing a petition for enforcement in a court of competent jurisdiction. In the enforcement proceeding, the court may award to the party prevailing in the enforcement proceeding all or part of the costs and attorney’s fees incurred in obtaining the enforcement order.

(4) Any person who fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents, or other evidence, without good cause, may be fined by a court of competent jurisdiction not more than the amount set forth in § 22-3571.01 or imprisoned not more than 60 days, or both.

(5) Any person who makes or causes to be made any false entry or false statement of fact in any report, account, record, or other document submitted to the administrative law judge pursuant to its subpoena or other order, or who willfully mutilates, alters, or by any other means falsifies any documentary evidence, may be fined by a court of competent jurisdiction not more than the amount set forth in § 22-3571.01 or imprisoned not more than 60 days, or both.

(1) The administrative law judge, in any action brought under this section shall, in addition to any administrative order awarded to the prevailing plaintiff, allow costs of the action, including costs or fees of any nature, and reasonable attorney’s fees, to be paid by the defendant. In any administrative order in favor of any employee under this section, and in any proceeding to enforce an administrative order, the court shall award to each attorney for the employee an additional judgment for costs, including attorney’s fees computed pursuant to the matrix approved in Salazar v. District of Columbia , 123 F.Supp.2d 8 (D.D.C. 2000), and updated to account for the current market hourly rates for attorney’s services. The administrative law judge shall use the rates in effect at the time the determination is made.

(2) If the fees remain unpaid to the attorney at the time of any subsequent review, supplementation, or reconsideration of the fee award, the administrative law judge shall update the award to reflect the hours actually expended and the market rates in effect at that time. No reduction shall be made from this rate, or from the hours actually expended, except upon clear and convincing evidence that the reduction will serve the remedial purposes of this law.

(3) Costs shall also include expert witness fees, depositions fees, witness fees, juror fees, filing fees, certification fees, the costs of collecting and presenting evidence, and any other costs incurred in connection with obtaining, preserving, or enforcing the administrative order.

(4) The District shall not be required to pay the filing fee or other costs or fees of any nature or to file bond or other security of any nature in connection with any action or proceeding under this section.

(n) Appeals of any order issued under this chapter , the Minimum Wage Revision Act , the Sick and Safe Leave Act , or the Living Wage Act shall be made to the District of Columbia Court of Appeals.

Legislative History

Aug. 3, 1956, 70 Stat. 978, ch. 924, § 8a; as added Feb. 26, 2015, D.C. Law 20-157, § 2(h), 61 DCR 10157