Employee Discipline: District of Columbia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Christine Zebrowski, Overbrook Law LLC
- The D.C. Human Rights Act is broader than federal antidiscrimination laws. The Act prohibits discrimination in employment on a number of protected characteristics. See The D.C. Human Rights Act.
- The D.C. smokers' rights law prohibits an employer from discriminating against any employee based on the use of tobacco or tobacco products. See Protection Against Discrimination or Retaliation in Disciplinary Situations; Smokers' Rights.
- Employees are protected against retaliatory discharge for taking leave under the D.C. Family Medical Leave Act. See D.C. Family Medical Leave Act.
- D.C. law protects employees of public sector employers or public contractors from retaliation. See Whistleblowers.
- Employers may not discharge or otherwise discriminate against employees for complaining about or exercising rights under the District's minimum wage laws and the Wage Theft Prevention Amendment Act. See Wage Complaints.
- Employers may not discharge employees for filing workers' compensation claims. See Workers' Compensation Claims.
- Under D.C.'s polygraph testing law, employers may not require employees to submit to a lie detector test as a condition of employment or continued employment. See Lie Detector Tests.
- D.C. courts generally enforce noncompete agreements that are reasonable. See Noncompete Agreements.
- D.C. has adopted the Uniform Trade Secrets Act. See Trade Secrets.
- D.C. employees owe their employers a fiduciary duty of loyalty, even in the absence of a written contract and even when employment is at will. See Duty of Loyalty.
- D.C. is a one party consent district. See Employee Communications.
- Criminal background checks are permitted in D.C., and the use of records of arrests and convictions generally follows federal law. See Use of Criminal History.
- False imprisonment is an intentional tort, or wrongful act, in D.C. See False Imprisonment.
- D.C. employers are required to post information on certain legal provisions. See Workplace Posters.
The D.C. Human Rights Act
The D.C. Human Rights Act is broader than federal antidiscrimination laws. Just as the nondiscrimination requirements of federal civil rights laws apply to employee discipline, so do the nondiscrimination requirements of the D.C. Human Rights Act.
The D.C. Human Rights Act covers any employer doing business in the District of Columbia or any employer who engages in discrimination in the District of Columbia, regardless of the number of employees. +D.C. Code § 2-1401.02(10).
The Act prohibits discrimination in employment based on the following characteristics, relating to any individual. A violation can occur whether it is based wholly or partially on the actual or perceived characteristic of:
- National origin;
- Age, ages 18 or older;
- Marital status;
- Personal appearance;
- Sexual orientation;
- Gender identity or expression;
- Family responsibilities;
- Genetic information;
- Matriculation, i.e., student status;
- Political affiliation;
- Credit information; and
- Status as a victim or family member of a victim of domestic violence, a sexual offense, or stalking.
The Act also requires accommodations for religious observance under certain circumstances. +D.C. Code § 2-1402.11(c).
Employees have one year to file claims under the D.C. Human Rights Act. Employees may file a claim directly in D.C. Superior Court without first having to file with the federal Equal Employment Opportunity Commission (EEOC) or the D.C. Office of Human Rights.
Under the D.C. Human Rights Act, supervisors can be held liable in their individual capacities, and employers can be held vicariously liable for the acts of supervisors. Any person who aids, abets, invites, compels or coerces another to violate the law also violates the law.
Protection Against Discrimination or Retaliation in Disciplinary Situations
The D.C. smokers' rights law prohibits an employer from discriminating against any employee based on the use of tobacco or tobacco products. This includes discrimination relating to discipline.
The smokers' rights law does not prohibit employers from establishing or enforcing workplace smoking restrictions that are otherwise permitted under D.C. or federal law. +D.C. Code § 7-1703.03.
Universal Paid Leave Amendment Act of 2016
The District of Columbia has enacted the Universal Paid Leave Amendment Act of 2016, which provides employees with paid parental, family and medical leave benefits that are funded by a mandatory 0.62 percent employer payroll tax. Covered employer includes an employer that is required to pay unemployment insurance on behalf of its employees, or a self-employed individual who has opted into the paid-leave program.
The Act took effect April 7, 2017, but the tax collection began in 2019 (i.e., July 1, 2019), and employees begin accessing paid leave benefits on July 1, 2020.
The Act has retaliation protections. Specifically, the Act prohibits any person from interfering with, restraining or denying the exercise or the attempt to exercise any right under the Act. An employer may not retaliate in any manner against a person (including the imposition of discipline) because he or she engages in any of the following activities protected under the Act:
- Opposes any practice made unlawful under the Act;
- Files or attempts to file a charge;
- Institutes or attempts to institute a proceeding;
- Facilitates the institution of a proceeding;
- Requests, applies for, or uses paid-leave benefits; or
- Gives any information or testimony in connection with a related inquiry or proceeding.
The Act also makes it unlawful for any individual to provide intentionally false statements in order to obtain paid-leave benefits.
For more information, please see FMLA: District of Columbia.
D.C. Family Medical Leave Act
Under the D.C. FMLA, any information the employee gives the employer regarding a family relationship because of a request for family leave may be used only in making a decision in regard to family leave. Any other use of such information, including the consideration of family relationships when disciplining employees, is not permitted by the Act.
The D.C. FMLA covers employers with 20 or more employees in the District of Columbia. It also covers D.C. government employees but not federal government employees. +D.C. Code § 32-501(2).
D.C. Accrued Sick and Safe Leave Act Amendments
The Earned Sick and Safe Leave Amendment Act of 2013 (ESSLA) amended the D.C. Accrued Sick and Safe Leave Act of 2008 (ASSLA) to include a number of retaliation protections for employees who engage in a protected activity as defined by the Act. Specifically, an employee is protected if he or she uses paid leave or opposes practices prohibited under the ASSLA. In addition, an employee (or temporary employee) will be protected under the statute for a number of activities, including the following:
- Filing a complaint with the Department of Employment Services (DOES);
- Filing a court claim;
- Whistleblowing, i.e., informing any person (e.g., employer, co-worker, family member or an attorney) about an ASSLA violation;
- Cooperating with an investigation or prosecution of an ASSLA violation; and
- Informing any person of his or her rights under ASSLA.
A D.C. employer may not count any leave taken under ESSLA as an absence for purposes of discipline (e.g., suspension or termination) or demotion. In addition, under the ESSLA, any adverse action taken against an employee within 90 days of a protected activity is presumed to be retaliatory (although the employer may rebut or refute that presumption).
Violations of the ASSLA's provisions have been amended to include civil penalties for willful (i.e., knowing) violations, which would amount to:
- $1,000 for the first offense;
- $1,500 for the second offense; and
- $2,000 for the third and any subsequent offense.
D.C. public sector employers have additional risk of liability under the D.C. whistleblower law if an employee is disciplined in retaliation for exercising his or her right to disclose certain information under the D.C. whistleblower law. D.C. Code § 1-615.51 to 1-615.59.
In addition, D.C. law protects employees of public contractors from retaliation for whistleblowing. through +D.C. Code § 2-223.07. Employers who contract with the District government may not retaliate against employees for making a protected disclosure or refusing to participate in illegal activities, including taking the following actions:
- Recommended, threatened or actual termination;
- Involuntary transfer, reassignment or detail;
- Referral for psychiatric or psychological counseling; or
- Failure to hire or promote or take another favorable personnel action.
Employers may not discharge, threaten, penalize or otherwise discriminate against employees for complaining about or exercising rights under the District's minimum wage provisions and other wage protection laws, such as the Wage Theft Prevention Amendment Act. See +D.C. Code § 32-1010(3); Minimum Wage: District of Columbia.
In addition, the District of Columbia Wage Transparency Act of 2014 prohibits an employer from requiring that employees refrain from inquiring about, disclosing, comparing or otherwise discussing the employee's wages or another employee's wages. The Act also protects an employee from retaliation for lodging a complaint, testifying or participating in an investigation related to a violation under the Act.
Workers' Compensation Claims
Protecting Pregnant Workers Fairness Act
The District of Columbia has enacted the Protecting Pregnant Workers Fairness Act of 2014 (D.C. Act 20-458), a law requiring that an employer provide reasonable accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, a related medical condition or breastfeeding. +2013 Bill Text DC B. 769.
The Act includes retaliation protections for employees. An employer is prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation under the law. Adverse actions include failing to reinstate the employee to her original job or an equivalent position when the need for the reasonable accommodation ends.
The Act is enforced by the Department of Employment Services (DOES). An employer that willfully violates the law's provisions could be subject to a civil penalty of:
- $1,000 for a first offense;
- $1,500 for a second offense; and
- $2,000 for the third and each subsequent offense.
The law became effective on March 3, 2015.
Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
District of Columbia law permits the use of marijuana for medical and recreational purposes. However, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.
An employer should continue to follow applicable drug testing policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.
Lie Detector Tests
Under D.C.'s polygraph testing law, employers may not require employees to submit to a lie detector test as a condition of employment or continued employment. +D.C. Code § 32-901 through +D.C. Code § 32-903. Testing is allowed for police, fire and corrections department employees.
However, even if lie detector tests are allowed under the law, no one can be denied employment based solely on the results of a lie detector test.
The District of Columbia prohibits contracts in restraint of trade. See +D.C. Code § 28-4502.
D.C. also prohibits noncompetes in the broadcasting industry. See +D.C. Code § 32-572.
Other than these two statutory prohibitions, D.C. courts generally enforce noncompete agreements that are reasonable. In addition to considering the reasonableness of the geographic scope and duration of the agreement, D.C. courts will look at whether the agreement is necessary under the following circumstances:
- To protect the employer's investment in its employees;
- To preserve confidential information; and
- To protect the employer against employees who leave the organization and solicit the employer's client base.
See Mercer Mgmt. Consulting, Inc. v. Wilde, +920 F. Supp. 219 (D.D.C. 1996).
In D.C., a trade secret means information, including a formula, pattern, compilation, program, device, method, technique or process, that:
- Derives actual or potential independent economic value from not being generally known to, and not being readily obtainable by, proper means by another who can obtain economic value from its disclosure or use; and
- Is the subject of reasonable efforts to maintain its secrecy.
It is illegal in D.C. to wrongfully acquire, disclose or use another's trade secret. +D.C. Code § 36-401.
Duty of Loyalty
D.C. employees owe their employers a fiduciary duty of loyalty, even in the absence of a written contract and even when employment is at will. This duty of loyalty requires employees to act solely for the benefit of the employer in all matters concerning the employee's employment.
Employees - especially managers, corporate officers and directors - owe an undivided and unselfish loyalty to their employers so there is no conflict of interest between the employee's duty to the employer and his or her self-interest. Whether the duty is breached will depend on the facts and circumstances of each situation, including whether the employee engaged in unfair acts or caused injury to his employer.
For example, accepting a contingent job offer is not a breach of the duty of loyalty. Also, making arrangements or plans to compete with the employer while still employed is not necessarily a breach of the duty.
Acts that have been deemed to constitute mere preparation instead of actual competition include:
- Preparing to open a competing business, e.g., opening a bank account;
- Obtaining office space and phone service; and
- Purchasing a rival business and refraining from competition until the employment has ended.
By comparison, acts that constitute actual competition include:
- Solicitation of business for an employee's personal endeavor, which the employee had an obligation to obtain for the employer;
- Competing with the employer for customers or employees; and
- Employee behavior leading to the mass resignation of the employer's workforce.
See Amtrak v. Veolia Transp. Servs., +791 F. Supp. 2d 33 (D.D.C. 2011).
D.C. is a one party consent district. This means that it is illegal in D.C. to intercept any wire or telephone communication unless the person intercepting the communication is a party to the communication or one of the parties to the communication has given prior consent.
Accordingly, employers may not eavesdrop on or record employee conversations unless a party to the conversation consents. +D.C. Code § 23-542.
Use of Criminal History
Criminal background checks are permitted in D.C., and the use of records of arrests and convictions generally follows federal law. However, D.C. employers must pay for obtaining arrest records.
Arrest records generally include only listings of convictions and forfeitures of collateral that have occurred within the last 10 years. +D.C. Code § 2-1402.66.
Mandatory Background Checks for Health Care Providers
In order to assure the safety of their workforce and patents, health care providers should be well versed in the requirements of D.C. law governing criminal background checks for health care employees. D.C. Code § 44-551 to § 44-554.
Employers who hire health care workers are required to do a criminal background check on their employees and certain contract workers. D.C. law requires certain procedures to be followed in obtaining a criminal background check.
For example, information on an individuals' criminal history may be used only by the facility where the individual works and must be kept confidential. Individuals with a history of certain violent crimes, crimes related to children, and drug dealing may not be employed in certain kinds of positions by a health care provider.
Mandatory Background Checks for Childcare Providers
In order to assure the safety of their workforce and the children under their care, childcare providers must be well versed in the requirements of D.C. law regarding criminal background checks for workers. D.C. Code § 4-1501.01 to § 4-1501.11.
Under the Criminal Background Checks for the Protection of Children Act, childcare providers are required to conduct criminal background checks for their employees and volunteers. D.C. law requires certain procedures to be followed in obtaining a criminal background check.
For example, information on an individual's criminal history may be used only for the purposes of making employment related decisions and must be kept confidential. Individuals with a history of certain violent crimes, crimes related to children, and drug dealing may not be employed by a childcare provider.
False imprisonment is an intentional tort, or wrongful act, in D.C. Employees must file a court claim within one year. See +D.C. Code § 12-301(4).
Employers should avoid the possibility of false imprisonment claims in discipline cases by ensuring that employees who participate in a disciplinary investigation or disciplinary meeting are aware that they are free to leave the meeting room at any time.
D.C. employers are required to post information regarding the following laws:
- Minimum Wage;
- Occupational Safety and Health;
- Child Labor;
- Unemployment Insurance and Workers' Compensation Insurance.
D.C. employers must also post information related to equal employment opportunity laws, including posters addressing:
- Parental Leave Act;
- Family and Medical Leave Act; and
- Public accommodations, if applicable.
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