Non-compete restrictions
As we previously reported, the District’s statute restricting employee non-compete agreements went into effect October 1, 2022. Among other things, this law generally prohibits employers from offering or entering into post-employment non-compete agreements with employees earning less than US$150,000 a year (US$250,000 for licensed physicians) and requires employers to give employees receiving such an agreement a specific notice about the law.
Employers with employees or prospective employees in D.C. should review their non-compete agreement templates for compliance with the new law. Employers should also monitor the Federal Trade Commission’s proposed non-compete rule, issued in January 2023, which, if adopted, will ban employee non-compete agreements for many employers (see our posts here and here).
Expansion of the D.C. Human Rights Act
Effective September 21, 2022, D.C. amended the D.C. Human Rights Act (DCHRA), which, among other things, prohibits employment discrimination, including harassment based on race, sex, age, disability, religion, and other protected characteristics. The amended law:
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Extends the DCHRA’s employment protections to individuals “working or seeking work as an independent contractor.” The amended law states that the term independent contractor “does not mean a service vendor who provides a discrete service to an individual customer.”
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Adopted a new definition of harassment under which harassing conduct, to be actionable, no longer must be “severe or pervasive”—the standard applicable under federal and most state anti-discrimination laws. Under the DCHRA, whether conduct constitutes unlawful harassment now depends on “the totality of the circumstances,” and “no specific number of incidents or specific level of egregiousness is required.” D.C. joins a growing list of jurisdictions that have abandoned or substantially narrowed the “severe or pervasive” standard, including New York, California, and Maryland.
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Added an individual’s “homeless status” to the DCHRA’s list of protected characteristics. “Homeless status has the same meaning as provided under D.C. Code § 4-751.01(18).
Employers are required to post a revised Equal Employment Opportunity Poster and should update their employee handbooks as needed in light of these amendments.
Expanded benefits available under D.C.’s Paid Family Leave law
Effective October 1, 2022, the District significantly expanded benefits available from the D.C. government under the Universal Paid Family Leave Amendment Act, commonly known as D.C. Paid Family Leave. Covered employees are now generally eligible for up to 12 weeks of partial wage replacement in a 52-week period for qualifying parental, family, and medical leaves, plus two weeks of prenatal leave. See our prior post for details.
Employers are required to post a revised D.C. Paid Family Leave Notice and provide the notice to covered employees at the following times: (i) to individual employees within 30 days of hire; (ii) to all employees at least once annually; and (iii) to an employee who provides notice that the employee needs leave for a qualifying event. Employers with D.C. Paid Family Leave policies should update their policies as needed.
New DCFMLA Poster; Eligibility requirements relaxed
In October 2022, the D.C. Office of Human Rights (OHR) released a revised D.C. Family and Medical Leave Act (DCFMLA) Poster, which includes a major change to the DCFMLA eligibility requirements that went into effect in November 2021.
DCFMLA requires employers with 20 or more employees in the District to provide job-protected, unpaid leave to eligible employees for certain family and medical reasons. To be eligible for DCFMLA leave, employees previously had to have been employed by their employer for one year without a break in service and must have worked for that employer for at least 1,000 hours during the 12-month period immediately preceding the requested leave. Now, employees are eligible for DCFMLA leave if they are employed for 12 or more consecutive or non-consecutive months in the seven-year period prior to the requested leave and worked at least 1,000 hours for the employer during that 12-month period. This is a significant departure from the federal FMLA, which requires (among other things) 12 months of service and 1,250 hours worked in the year immediately preceding the requested leave.
Employers must post the revised poster and should update their DCFMLA policies and forms as needed.
On deck: Employment protections for cannabis users
The D.C. Cannabis Protections Amendment Act of 2022 became law in October 2022 but will not be enforced until July 2023 at the earliest. It generally prohibits employers from firing, failing to hire, or taking other adverse actions against employees for recreational cannabis use, participation in a medical cannabis program, or for failing a cannabis drug test, with some exceptions.
The law does not apply to “safety-sensitive” positions (such as operating a motor vehicle or working on a construction project) if the employer designates the positions as safety-sensitive. Employers can still prohibit marijuana use (with certain exceptions for medical marijuana used to treat a disability) and impairment during work and can maintain policies to test employees for marijuana post-accident and based on reasonable suspicion. There are also exceptions for employers required to take particular actions related to marijuana under a federal law, contract, or funding agreement.
Employers should review their drug and alcohol policies for compliance with the new law and watch for OHR to publish a notice of rights that will need to be posted and distributed to employees.
For more information regarding how these legal developments may impact your workplace, please contact the Hogan Lovells lawyer with whom you regularly work.
Authored by George Ingham, Amy Folsom Kett, and Saydee Schnider.
