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Top 10 Wage Violations at Restaurants in D.C. and Maryland
Below are 10 of the most common wage violations that we have seen at restaurants in Maryland and Washington, D.C. Some of these practices are so common that workers mistakenly believe they are legal. If you have any questions regarding these, or other, pay practices please contact us.
1. Tip theft
Under federal, D.C. and Maryland laws, if you are a tipped worker, your employer (including managers and supervisors) may not take your tips and keep them for themselves or share them with non-tipped workers.
2. Unpaid Minimum Wages
The Maryland minimum wage is $10.10 an hour and will be increased to $11 an hour in 2020. Some counties in Maryland, like Prince George’s and Montgomery Counties, have higher minimum wages. The D.C. minimum wage is $14 an hour and will increase to $15 an hour on July 1, 2020.
3. Off-the-Clock Work
Your employer may not require you to work off-the-clock. Your employer must keep track of and pay you for every hour that you work.
4. Dual Job Requirements
If you are a tipped worker, your employer cannot require you to do non-tipped work like cleaning bathrooms, mopping, or degumming (among other tasks), without paying you the full minimum wage.
5. Unpaid Overtime Wages
Many restaurants fail to pay workers at the correct overtime rate.
6. Unlawful Deductions for Customer Walkouts, Uniforms, Mistakes, or Breakages
Your employer may not take deductions from your pay for customer walkouts, uniforms, mistakes, or breakages if those deductions bring your pay under the minimum wage.
7. Failure to Provide Written Notice to Tipped Workers
To pay waiters, servers, bartenders, and other tipped workers a tipped minimum wage (less than the full minimum wage), an employer must provide written notice to the workers regarding their pay practices, including how tips are distributed.
8. Failure to Provide Anti-Sexual Harassment Prevention Training
In D.C., your employer is required to provide anti-sexual harassment prevention training to all employees as well as managers and owners in order to pay tipped workers less than minimum wage.
9. Unpaid Sick Leave
Maryland and D.C. require employers to provide paid sick leave to certain employees.
10. Time Shaving
Your employer may not remove hours from your clock-in and clock-out records or add breaks that you didn't take.
Frequently Asked Questions
- Why is paid sick leave important?
Paid sick leave is a public health issue. It allows workers to stay at home if they are ill without having to miss a paycheck. That means that they are better able to recover and are less likely to pass on contagious illnesses to coworkers, customers, and fellow commuters. Without paid leave, workers are often left with no choice but to come to work sick because missing work may mean losing their home, car, childcare, or health insurance.
Paid sick leave in some states and/or cities also allows workers to take care of family members who are sick or otherwise need help. This may prevent them from facing higher medical costs in the form of emergency room visits as opposed to routine medical appointments.
- What is the D.C. Accrued Sick and Safe Leave Act (“ASSLA”)?
The D.C. Accrued Sick and Safe Leave Act is the local law that requires employers to provide paid sick leave to their workers for illnesses and absences related to domestic violence or sexual abuse. In 2008, the D.C. Council passed ASSLA, which was then approved by Mayor Adrian Fenty and the U.S. Congress. On April 7, 2020, the D.C. Council voted to amend ASSLA in response to the Coronavirus (COVID-19) pandemic, and Mayor approved the amendments on April 10, 2020.
- Who is protected by ASSLA?
You are protected by ASSLA if you are employed in D.C. by an employer of any size, including the D.C. government.
- What rights do covered workers have under ASSLA?
Under ASSLA, during normal circumstances, you are entitled to accrue paid sick leave beginning at the start of your employment, and you can access that accrued leave once you have been employed for at least 90 days.
If you are a tipped worker at a restaurant, you accrue one hour of paid leave at the full minimum wage for every 43 hours worked, up to 5 days per year.
For all other workers, the amount of paid sick leave you accrue depends on the size of your employer:
- 100 or more workers? You accrue one hour of paid sick leave for every 37 hours worked, up to 7 days per year.
- 25 to 99 workers? You accrue one hour of paid leave for every 43 hours worked, up to 5 days per year.
- Fewer than 25 workers? You accrue one hour of paid leave for every 87 hours worked, up to 3 days per year.
D.C. workers may use their sick leave for the following reasons:
- Physical or mental illness, injury, or medical conditions;
- To obtain a medical diagnosis or preventative care;
- To care for a child, a parent, a spouse, domestic partner, or any other family member who has a medical condition or needs a diagnosis; and
- Because the employee or employee’s family member is a victim of stalking, domestic violence, or sexual abuse.
Additional protections are available during the Coronavirus (COVID-19) emergency. During this time, if you work for an employer that is not a health care provider and has between 50 and 499 employees, you are entitled to up to 2 full weeks of paid sick leave at your regular rate of pay. For full-time workers, this means up to 80 hours of paid sick leave. For part-time workers, this means the usual number of hours worked in a two-week period. Note that your employer may require that you first use any available leave you have (for example, vacation days).
You can use emergency paid leave once you have been employed for at least 15 days. Emergency paid leave can be used if:
- You are subject to a federal or District-issued quarantine or isolation order;
- A health care provider advised you to self-quarantine;
- You are experiencing Coronavirus (COVID-19) symptoms and seeking a medical diagnosis;
- You are caring for someone who has been advised to self-quarantine or is subject to a federal or District-issued quarantine or isolation order;
- You are unable to work (remotely or otherwise) because you need to care for a child younger than 18 years old because of school closures or other childcare unavailability.
- How do I request paid sick leave from my D.C. employer?
Under normal circumstances, if the absence is planned, you must provide written notice 10 days in advance, or as early as possible. Where the leave is unforeseeable, you must give oral notice at the start of the work shift. If an emergency occurs, you must notify your employer at the beginning of the shift or within 24 hours after the onset of the emergency, whichever happens first.
For COVID-19 related paid sick leave, you must provide up to (but not more than) 48 hours’ notice except in emergency situations, in which case you only need to provide reasonable notice of the need to use leave. Your employer cannot require you to search for or identify another worker to cover your work or perform your shift.
Your employer may ask you for “reasonable certification” that you are sick when you return to work after taking 3 or more consecutive days of paid leave. Reasonable certification may include a signed note from a health care provider affirming your illness. The reasonable certification requirement is not required for COVID-19 related sick leave if your employer doesn’t contribute to your health insurance coverage. Also, for COVID-19 related paid sick leave, you have until one week after you return to work to provide the certification.
- What if my employer violates ASSLA?
Under normal circumstances, if your D.C. employer fails to provide paid sick leave, you are entitled to $500 for each day that you were denied, regardless of whether you took unpaid leave or reported to work. If the employer willfully violates the D.C. Accrued Sick and Safe Leave Act, it is liable in the amount of $1,000 for the first offense, $1,500 for the second offense, and $2,000 for the third and each subsequent offense. You may also be able to recover lost wages, reinstatement to your job, and other damages.
For COVID related paid sick leave, though, the Mayor will provide an employer alleged to have violated ASSLA up to 5 business days from the date the employer receives written notification of the potential violation to “cure” the violation.
To enforce your rights under ASSLA, you can file a complaint in court or with the D.C. Department of Employment Services, or negotiate a resolution with your employer. You can take these actions on your own or with the help of a lawyer, like those at Outten & Golden LLP.
- Can my employer discriminate against me or retaliate against me for exercising my rights under ASSLA?
No. Discrimination and retaliation is unlawful under the D.C. Accrued Sick and Safe Leave Act. An employer that fires or otherwise discriminates against you because took any action to exercise or enforce your paid sick leave rights is breaking the law, and you could bring a lawsuit against the employer for retaliation.