A Halloween Tale: Ghosted by Laws that Are Passed But Not Implemented!

By Fiona W. Ong - Shawe Rosenthal LLP

October 10, 2019

So last month, I blogged about my discovery that the Maryland Code does not actually contain all the laws that have been passed, which caused me to wonder how we were supposed to comply with them. And now, I just learned that in D.C., some laws that are passed end up not being implemented after all! Wait – what?!

I discovered this in preparing for a recent presentation on new D.C. employment laws over the past two years. A year ago, in our monthly E-Update, I summarized  the newly-enacted Tipped Wage Workers Fairness Amendment Act of 2018, which also had implications for all employers generally. When I first reviewed the new law, I thought that these provisions imposed some pretty aggressive requirements on employers.

As to all employers, the law requires the Mayor to create a website setting forth employees’ rights and benefits under D.C.’s anti-discrimination and labor laws (including wage and leave laws), and providing resources for consultation. Employers are then required to post notices about the website and list of applicable laws, and also provide a binder of the website information, updated monthly. The failure to do so will result in a fine of $100 per day. The Mayor is also supposed to create a public awareness campaign and a violation tip line.

With regard to employers of tipped workers, among many other things, the law imposes detailed requirements for mandatory sexual harassment training and policies, as well as training on tipped wages, and requires employers to submit the policies and certification that training has been completed to the appropriate governmental agencies. The law also sets up a Tipped Employees Coordinating Council that is “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.”

But when I pulled up the law in the D.C. Code last week, the text of these provisions were missing! Oh no, ghosted again! But this time, it was for a different reason!

For example, the mandatory sexual harassment training and policy provision appears at D.C. Code § 2-1411.05a, but the Code simply states “Not funded.” In the notes to this provision, there is an “Applicability” section, which states, “Applicability of D.C. Law 22-196: § 8 of D.C. Law 22-196 provided that the creation of this section by § 5 of D.C. Law 22-196 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.” (!!!)

The same language appears for the general notice and binder requirements for all employers (D.C. § Code 32-161), for the requirement that the Mayor create a public awareness campaign and violation tip line (D.C. Code § 32-162), for the Tipped Employees Coordinating Council (D.C. Code § 32-1009.02) and for the reporting requirement on the minimum wage training (D.C. Code § 32-1306.01). None of these are in effect.

So, it appears that the D.C. Council and Mayor can decide to pass certain onerous laws ostensibly to benefit workers, get credit for standing up for those workers, but then choose not to fund these laws so that they don’t actually take effect. Huh. That seems really wrong to me. Definitely more of a trick than a treat.

I did an electronic search of the D.C. Code, and there are 315 laws that are not funded. Granted, most of them are from 2018 or 2019, so I suppose it’s possible and maybe even likely that the Council and Mayor will eventually fund these provisions, including the ones I discuss above, making them effective. But there are a few unfunded laws out there from as far back as 1955. Still haunting us…