United States: DC Repeals Tipped Worker Wage Law But Imposes New Requirements On Employers Of Tipped Workers

Last Updated: February 8 2019
Article by Donald C. Davis

The District of Columbia Council recently repealed a law approved by voters in a June 2018 referendum that would have fundamentally changed the way tipped workers in the District are paid. Embedded in the repeal legislation, which passed in October 2018 and took effect on December 13, 2018, are provisions that place new and potentially substantial requirements on employers of tipped workers in the District. These new requirements are ostensibly designed to prevent abuse of tipped workers. Because the repeal and its new requirements are now in effect, employers of tipped workers such as restaurants, bars, and other service establishments should immediately take note and plan for compliance.

The repeal legislation, dubbed the "Tipped Wage Workers Fairness Amendment Act of 2018," (the "Act") institutes three new major requirements that impact employers and D.C. government: (1) employers of tipped workers must comply with new sexual harassment training requirements; (2) employers of tipped workers must begin to use – if they do not already -- a third-party payroll system that submits payroll data to the District's Department of Employment Services ("DOES"); and (3) DOES must provide more information to the public on the various labor and anti-discrimination laws in the District and create an internet and phone-based reporting system for public reporting of potential violations.

Sexual Harassment Documentation, Reporting and Training Requirements

No later than July 1, 2019, employers of tipped workers must file with the Office of Human Rights ("OHR") a policy that includes detail on how employees may report instances of sexual harassment to management and to OHR. By the same date, employers must also distribute the employer's sexual harassment policy to employees and post the policy in a conspicuous place accessible to all employees in the workplace.

Importantly, employers should also take note that they will be required to document instances of sexual harassment reported to management, including whether the reported harasser was a non-managerial employee, manager, owner, or operator, and then report to OHR by July 1, 2019 (and annually thereafter) the number of instances of sexual harassment reported to management and the total number of reported harassers who were non-managerial employees, managers, owners, or operators.

In addition, no later than December 12, 2020 and regularly thereafter, owners, operators, managers, and employees of employers of tipped workers must attend sexual harassment prevention training. Except for managers, this requirement may be satisfied by attending either in-person or web-based training every two years. Managers must attend this biannual training in person. New employees must be trained within 90 days of hire, unless the new employee has taken the required training within the preceding two years. While OHR is directed by the Act to design and provide a sexual harassment training course, employers may opt to use a course from a private sector provider that has been certified by OHR. If the employer opts to train using a non-OHR course, the employer must certify to OHR within 30 business days following completion of the training that the employee, manager, owner, or operator has completed the required training. Whether an individual takes the OHR-sponsored training course or a non-OHR course, OHR will maintain records of each individual's training for at least 5 years.

Third-Party Payroll and Wage Reporting Requirements

Additionally, beginning January 1, 2020, employers of tipped workers (except for hotel employers) must begin using a third-party payroll service. The payroll service (or hotel) must submit a quarterly wage report to DES within 30 days of the end of each quarter, which must certify that each tipped worker was paid at least the required minimum wage, inclusive of gratuities.

Until then, and as of December 13, 2018 (the effective date of the Act), the employer must submit quarterly reports to DOES that itemize the following information: (1) the name of each employee; (2) the number of hours each employee worked each week during the quarter for which the report is being provided; (3) the total pay, including gratuities, received by each employee each week during the quarter for which the report is being provided; (4) the average weekly wage for each employee during the quarter for which the report is being provided; and (5) the employer's current tip out policy that the employer supplied to the third-party payroll company for calculation of wages during the quarter.

The quarterly reports must be submitted electronically via the DOES employer self-service portal. The Act requires that, "before January 1, 2020," all employers of tipped workers must submit the reports through the portal, unless doing so would create a hardship. The portal currently instructs employers as follows:


Pursuant to DC Code § 32–1009.01. Notice requirements for tipped wages; please be advised that restaurants and other employers having employees that are paid pursuant to § 32–1003(f)(1) (Tipped Employees), must submit a quarterly "Tipped Wage Report" to the Mayor via an Internet-based portal (ESSP) to ensure that employees receive a combined wage and gratuity (tip) income that is no less than the full minimum wage.

Employers and Agents can now upload an electronic file containing tipped wage information. Click here to download the file specification instructions.

Come January 1, 2020, quarterly reports due as of that date must thereafter be submitted via the portal by the third-party payroll services on behalf of the employers they serve, as well as by hotel employers.

The Act also requires that the portal be designed to accept anonymous and non-anonymous wage theft complaints by employees. In addition, DOES must establish a public reporting system that allows employees and other members of the public to report wage-related violations. The reporting system must be available by web and telephone 24 hours a day, 7 days a week each week for the entire calendar year. DOES may investigate reports submitted through this system.

At the time of wage payment, employers must also provide employees with an itemized statement showing the following: (l) the date of the wage payment; (2) gross wages paid; (3) deductions from and additions to wages, including a separate line for gratuities; (4) net wages paid; (5) hours worked during the pay period; (6) the employee's tip declaration form for the pay period, delineating cash tips and credit card tips; and (7) any other information as the Mayor may prescribe by regulation.

Other New Notices and Miscellaneous Requirements

The law also amends Section 4(g) of The Minimum Wage Act Revision Act of 1992 (the "Minimum Wage Act") in order to place additional notice requirements on employers of tipped workers. With this amendment, the minimum wage requirements applicable to non-tipped workers will not apply to employers of tipped workers as long as the employer has provided its tipped employees with notice of the following, which must be included in the notice furnished pursuant to section 9(c) of the Act: (1) the provisions of subsection (f) of Section 4 of the Minimum Wage Act; (2) if tips are not shared, that the tipped employee shall retain all tips received; (3) if tips are shared, the employer's tip-sharing policy; and (4) the percentage by which tips paid via credit card will be reduced by credit card fees. This amendment also requires employers that have a tip-sharing policy to post that policy. Likewise, employers will not be liable to pay the regular non-tipped minimum wage as long as all gratuities received by the employee have been retained by the employee, except that tip pooling is permissible.

Finally, the law establishes a Tipped Workers Coordinating Council, which is intended to be a partnership of tipped workers, employers, and public agencies that promotes a high-quality response to tipped-worker cases of wage theft and unfair labor practices.

What Should Employers of Tipped Workers Do Right Now?

Here's what employers of tipped workers should do right now to ensure compliance:

  • File quarterly tipped wage reports on the DOES ESSP portal.
  • Take steps now to ensure that before July 1, 2019, you have a fully compliant sexual harassment policy that is ready to file with OHR and be distributed to employees and conspicuously posted.
  • Non-hotel employers of tipped workers should begin looking for a third-party payroll service that can ensure compliance with the Act beginning on January 1, 2020.
  • Prepare to explore the OHR-sponsored sexual harassment training once it is created, or look for an OHR-certified training course, once OHR has released this information. We will keep you abreast of developments in this area.
  • For new hires required to be trained within 90 days of hire, provide them with a mandatory robust sexual harassment training and document that training, regardless of whether OHR has yet released its own course or certified any non-OHR courses.
  • Reach out to local employment counsel to seek advice in areas where the law has failed to provide clarity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Donald C. Davis
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions