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Unemployment Insurance Hearings

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Are you an Employer with an upcoming Unemployment Insurance hearing at the DC Office of Administrative Hearings (OAH)?

We Represent Employers.

Why would an Employer Participate in an Unemployment Insurance (UI) Hearing?

  • Employers pay UI taxes, sometimes called state unemployment taxes (SUTA), at a rate based on the employer’s “experience.” Experience is measured by successful unemployment claims against the employer.
  • Employers pay UI taxes based on the wages paid to their employees in a quarter and their experience rating. Nonprofits may elect to pay UI claims on a per claim basis instead of the tax.
  • With certain exceptions, most UI claims are paid out of an employer’s UI account, and only employers contribute to these accounts.

What can employers do to increase their chances of “winning” their UI hearing?

  • Keep good records. Accurate, contemporaneous documentation of employee conduct beats conversation.
  • Have an employee handbook. Employers should have reasonable and consistently enforced policies in a handbook that employees acknowledge receipt of in writing.
  • Retain written resignations. This documents the employee’s stated reason for separating.

How can an employee be granted unemployment insurance benefits?

  • To be “eligible” he/she needs sufficient wages in his/her base period of employment; and be able and available to work.
  • To be “qualified” in the District of Columbia, the law assumes that all Claimants are qualified to receive UI benefits.
  • For a Claimant to be disqualified from receiving benefits at a DC UI hearing, the Employer has the burden of proving by a preponderance of the evidence that Claimant engaged in either:
    • Gross misconduct;
    • Misconduct other than gross (simple misconduct); or
    • Left the job without good cause connected to the work.

 

If you are an Employer with a UI hearing at OAH, have questions about an UI claim that have been filed against your organization, or need any other assistance with a UI claim or UI tax issue, contact Thomas B. Martin 202-795-9999 or tmartin@gmpllp.com for a free consultation. Download our flyer here.

 

Disclaimer: This does not constitute legal advice, nor does it create an attorney-client relationship.  Contact an attorney for legal advice about your matter or case.

Legislative Update: Proposed Committee Changes for Council Period 24

On December 22, the Council of the District of Columbia announced proposed committees for Period 24. The Council will vote on committees at its organizational meeting on January 4. The new committees will be in effect until the next Council period ends in December 2022, unless amended. In the upcoming period, 10 Councilmembers will chair 10 standing committees, as well as a Sub-Committee on Redistricting and a Special Committee on COVID-19 Pandemic Recovery. The proposed changes to committees are detailed below.

 

New Standing Committees

 

  • The Committee on Government Operations and Facilities, chaired by Councilmember Robert White, will have responsibility for matters relating to the general operation and services of government, including procurement; maintenance of public buildings and property management; human rights; partnerships and grants management; matters relating to LGBTQ affairs; issues related to women; veterans affairs; matters affecting administrative law and procedure; matters relating to Advisory Neighborhood Commissions; matters regarding returning citizens; and the Washington Metropolitan Area Transit Authority

 

  • The Committee on Housing and Executive Administration, chaired by Councilmember Anita Bonds, will have responsibility for matter relating to the development, maintenance, preservation, and regulation of housing stock; joint jurisdiction for the purpose of oversight (not legislation) with the Committee on Business and Economic Development for New Communities; urban affairs; matters related to the Executive Office of the Mayor; and matters related to seniors.

 

  • The Committee on Recreation, Libraries and Youth Affairs, chaired by Councilmember Trayon White, will have responsibility for public libraries; public parks and recreation; cable television and entertainment; matters relating to Caribbean, Latino, African American, and Asian and Pacific Islander affairs; and youth affairs (other than juvenile justice).

Key Changes in Existing Standing Committee Responsibilities

  • Committee of the Whole
    • Additions
      • All matters related to public education, including matters exclusively concerning the University of the District of Columbia or the Community College of the District of Columbia
      • Redistricting
      • Board of Review of Anti-Deficiency Violations
      • Bullying Prevention Task Force
      • Commission on Out of School Time Grants and Youth Outcomes
      • Common Lottery Board
      • Community Schools Advisory Committee
      • District of Columbia Opportunity for Military Children State Council
      • District of Columbia Public Charter School Board
      • District of Columbia Public Schools
      • District of Columbia State Athletics Commission
      • Education Licensure Commission
      • Healthy Youth and Schools Commission
      • Higher Education Licensure Commission
      • Interagency Coordinating Council
      • Office of Out of School Time Grants and Youth Outcomes
      • Office of the Deputy Mayor for Education
      • Office of the Ombudsman for Public Education
      • Office of the State Superintendent for Public Education
      • Office of the Student Advocate
      • Our Schools Leadership Committee
      • Public Charter School Credit Enhancement Fund Committee
      • State Board of Education

 

  • Committee on Business and Government Operations
    • Additions
      • Joint jurisdiction with the Committee on Housing and Executive Administration for New Communities
      • Commission on Nightlife and Culture
      • Commission to Commemorate and Recognize Charles Hamilton Houston and for His Contributions to the American Civil Rights Movement, Education, and the Legal Profession
      • Office of Nightlife and Culture
      • Washington Convention and Sports Authority/Events DC

 

  • Committee on Human Services
    • Additions
      • Government Ethics
      • Board of Ethics and Government Accountability
      • Office of Deaf and Hard of Hearing
      • Office of the Ombudsperson for Children

 

  • Committee Assignments
Business and Economic Development

Kenyan McDuffie, Chair

Charles Allen

Mary Cheh

Vincent Gray

Brooke Pinto

Housing and Neighborhood Revitalization 

Anita Bonds, Chair

Brianne Nadeau

Elissa Silverman

Robert White

Trayon White

Education

David Grosso, Chair

Charles Allen

Anita Bonds

Robert White

Trayon White

 

 

Human Services

Brianne Nadeau, Chair

 Janeese Lewis George

Elissa Silverman

 David Grosso

 Brandon Todd

Robert White

Trayon White

Housing and Executive Administration

Anita Bonds, Chair

Kenyan McDuffie

Brooke Pinto

Elissa Silverman

Robert White

 

Facilities and Procurement

 Robert White, Chair

 Mary Cheh

 Vincent Gray

 Elissa Silverman

 Brooke Pinto

 

Labor and Workforce Development

Elissa Silverman, Chair

Christina Henderson

Janeese Lewis George

 Charles Allen

 David Grosso

 Kenyan McDuffie

Robert White

Trayon White

Judiciary and Public Safety

Charles Allen, Chair

Anita Bonds

Mary Cheh

Vincent Gray

Brooke Pinto

 

 

 

Government Operations

 Brandon Todd, Chair

 David Grosso

 Brianne Nadeau

 Elissa Silverman

Trayon White

Recreation and Youth Affairs

 Trayon White, Chair

 Anita Bonds

 Kenyan McDuffie

 Brianne Nadeau

 Brandon Todd

Health

Vincent Gray, Chair

Charles Allen

Mary Cheh

 David Grosso

Christina Henderson

Brianne Nadeau

Brandon Todd

Recreation, Libraries and Youth Affairs

Trayon White, Chair

Anita Bonds

Janeese Lewis George

Kenyan McDuffie

Brianne Nadeau

 

 

Government Operations and Facilities

 Robert White, Chair

Christina Henderson

Brianne Nadeau

Brooke Pinto

Trayon White

 

 

Transportation and the Environment

Mary Cheh, Chair

Charles Allen

Christina Henderson

Janeese Lewis George

Kenyan McDuffie

 Brandon Todd

Brooke Pinto

Sub-Committee on Redistricting

Elissa Silverman, Chair

Anita Bonds

Christina Henderson

 

 

Special Committee on COVID-19 Pandemic Recovery

Vincent Gray, Co-Chair

Charles Allen, Co-Chair

Janeese Lewis George

Kenyan McDuffie

Brooke Pinto

Bill 23-965, the Displaced Workers Right to Reinstatement and Retention Amendment Act of 2020

On December 15, the Council of the District of Columbia adopted Bill 23-965, the Displaced Workers Right to Reinstatement and Retention Amendment Act of 2020 (“Act”) on a permanent and emergency basis. The Act, introduced by Chairman Phil Mendelson, would establish a right to reemployment for eligible employees of certain contractors and employers at covered establishments. The Act will expire on June 30, 2023, except that the retaliation and enforcement provisions will expire on June 30, 2024. The emergency Act will take effect for 90 days upon approval by the Mayor, and the permanent Act must be signed by the Mayor and complete a 30-legislative-day congressional review period to take effect. The Act as adopted is summarized below.

Eligible Employees

  • An eligible employee is an individual who was employed to work at a covered establishment or for a contractor, and who: (1) ceased working at the covered establishment or for the contractor for reasons other than voluntary resignation or termination for cause, and (2) the individual’s last day of employment for the employer was between December 1, 2019 (hotel employees), or March 1, 2020 (all other eligible employees), and the last day of the COVID-19 public health emergency.
    • Eligible employees do not include individuals:
      • Employed in an executive, administrative, or professional capacity under the Fair Labor Standards Act;
      • Who received severance from the individual’s employer or contractor when the individual’s employment ceased and whose employer or contractor has a written, verifiable proof of the severance; or
      • Whose employer or contractor would have terminated the individual for demonstrable just cause when the individual previously worked for the employer or contractor.
    • Contractors are defined under the Act as an individual or company, other than an employer, that employs 25 or more individuals and who has hired them to work as:
      • Food service workers in a hotel, restaurant, cafeteria, apartment building, hospital, nursing care facility, or similar establishment;
      • Persons to perform janitorial or building maintenance services in an office building, institution, or similar establishment;
      • Nonprofessional employees to perform health care or related services in a hospital, nursing care facility, or similar establishment; or
      • Persons to perform security services in an office building, institution, or similar establishment, except for special police officers who are armed, and employees hired to perform security services for D.C. Public Schools or public charter schools.
    • Employers are defined under the Act as any entity that, directly or indirectly, including through a staffing agency:
      • Employs or exercises control over the wages, hours, or working conditions of an employee at a covered establishment, which is a hotel, restaurant, tavern, brew pub, nightclub, club, event or entertainment establishment venue at which live performing arts, sporting, or other entertainment events are held, or a business engaged in the sale of goods to consumers, not including wholesalers;
      • Is not a contractor;
      • If the entity operates a hotel, the entity employed 50 or more individuals at a hotel on December 1, 2019; and
      • If the entity does not operate such a hotel, the entity employed 50 or more individuals at a covered establishment on March 1, 2020.

Right to Reinstatement

  • Beginning February 1, 2021, as positions become available with the contractor or in the employer’s operation at a covered establishment, the contractor or employer must offer each eligible employee reinstatement to the employee’s previous position or to a position performing the same or substantially similar duties—and that requires essentially the same skills—as those performed by the employee before ceasing work for the contractor or covered establishment.
  • The contractor or employer must make the offer of reinstatement in writing to the employee’s last known address by registered mail, email, text, or other method that is documented and retained. The offer must include a deadline that is no fewer than three calendar days from the date the offer is sent (if made by mail, text, or same-day delivery), or received (if made by registered mail, mail, or other non-same-day delivery) for an eligible employee to accept or decline the offer. If the employee accepts, the employee must report to work not later than seven days, or later if requested by the employer, from the date the offer is received.
  • If more than one eligible employee is entitled to reinstatement to a position, the contractor or employer may make simultaneous, conditional offers based on seniority within job classifications, except for positions at a restaurant, tavern, brew pub, night club, or club.
  • A contractor or employer may not hire a new employee for a position until all eligible employees have either not responded to, or declined, an offer of reinstatement.

 

Changes in Controlling Interest or Employer

  • Requirements regarding changes in controlling interest or employer do not apply to employees who are entitled to a transition employment period under non-COVID-19 District displaced worker protections, or retained employees who work at restaurants, taverns, brew pubs, nightclubs, or clubs, unless the change would have no demonstrable change to its operations.
    • A change in controlling interest or identity of an employer includes any of the following events that causes either a change in the entity or entities holding a controlling interest in an employer, or a change in the identity of the employer, after February 29, 2020, so long as the new employer’s business operations consist of the same or similar operations as those conducted on or before February 29, 2020:
      • Any sale, assignment, transfer, contribution, or other disposition of a controlling interest in an employer by consolidation, merger, or reorganization of the employer, or any entity or entities that maintains any ownership interest in the employer; or
      • Any purchase, sale, lease, reorganization or restructuring, or relocation of the operation of an employer.
    • Right to Reinstatement: A new employer created as a consequence of a change in controlling interest or identity of an employer must provide a right to reinstatement as provided in the Act.
    • Right to Retention: A new employer must retain (1) any eligible employee reinstated for a 90-day transition period beginning on the date the eligible employee is reinstated, and (2) any retained employee who agrees to remain employed by the new employer for a 90-day transition period beginning on the date of the change in controlling interest or identity of the employer.
      • A retained employee is any individual, except those employed in an executive, administrative, or professional capacity under the Fair Labor Standards Act, who was working for an employer at a covered establishment when a change in controlling interest or identity of an employer occurred, or when an employer was required to give notice of the change.
    • Generally, a new employer may not discharge a retained employee or eligible employee reinstated during the 90-day period without cause. However, if at any time a new employer determines that fewer employees are required to work at the covered establishment than the number required before the change in controlling interest or identity of the employer, the new employer must retain employees by seniority, unless it is a restaurant, tavern, brew up, nightclub, or club.
    • At the end of the 90-day transition period, the new employer must perform a written performance evaluation of each retained employee and each eligible employee reinstated. If the employee’s performance was satisfactory, the new employer must offer continued employment.
    • Beginning February 1, 2021, an employer that anticipates a change in controlling interest or the identity of the employer must, within 15 calendar days before the anticipated date of the change, provide the following notices:
      • To all parties to the transaction that results in the change, and any labor organization that represents the retained or eligible employees: Notice of the name, last known address, date of hire, position, and text or telephone contact information for each eligible employee; and
      • To retained employees and eligible employees and any labor organization that represents the retained or eligible employees: Notice that the employer is experiencing or anticipates a change in controlling interest or identity of the employer and of an employee’s right to reinstatement or retention. This notice also must be posted on the premises of the covered establishment and texted, emailed, or mailed to the last known address of all eligible employees.

Retaliation Prohibited

  • No contractor or employer may terminate, refuse to reinstate or employ, or take an adverse action against any eligible employee or retained employee because the employee asserted rights under or participated in proceedings related to the Act, or because the employee opposed any practice said employee reasonably believes in good faith to be prohibited by the Act.
  • If it is established that an employee engaged in protected conduct, and the contractor or employer thereafter terminated, refused to reinstate or employ, or took adverse action against the person within 60 days afterward, a rebuttable presumption arises that the action was in violation. The contractor or employer may rebut the presumption by producing credible evidence that the sole reason for the action was a legitimate business reason. The business reason may be rebutted by a showing of pretext.
  • The prohibition against retaliation will expire on June 30, 2024.

Enforcement

  • An eligible employee or retained employee may, on behalf of themselves or other similarly situated employees, bring an action to enforce the Act in D.C. Superior Court.
  • Upon prevailing, an employee shall be awarded:
    • Back pay for each day the violation continues at a rate not less than the greater of: (1) the average rate of regular pay during the last three years, or (2) the final regular rate received;
    • Costs of benefits the employer would have incurred for the employee under the employer’s benefit plan;
    • If it is established that the contractor or employer violated the Act with malice or reckless indifference, an employee shall be entitled to treble damages and additional compensatory or punitive damages; and
    • Reasonable attorney fees and costs, including expert witness fees.
  • The enforcement provisions will expire on June 30, 2024.

Relationship to Employment Contracts and Agreements

  • The Act’s requirements do not diminish the obligation of a contractor or employer to comply with the provisions of any contract, including any individual contractual arrangement or any collective bargaining agreement that provides greater or equal rights to employees than the rights afforded under the Act.

Protecting Businesses and Workers from COVID-19 Emergency Act and Mayor’s Order 2020-080 on Mask Requirements

On August 13, 2020, the Mayor signed Bill 23-870, the Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020 (“Act”). The Act will be in effect for 90 days. The Council is separately moving the Act on a temporary basis, which if enacted would be in effect for 225 days after completing congressional review. The Act requires by statute that employers adopt the COVID-19 workplace protections specified in Mayor’s Order 2020-080, prohibits retaliation, and provides for enforcement.

 

Protecting Businesses and Workers from COVID-19 Emergency Amendment Act of 2020

 

Workplace Protections

  • During the public health emergency, employers in the District must adopt and implement social distancing and worker protection policies to prevent transmission of COVID-19 in the workplace that adhere to the requirements of Mayor’s Order 2020-080 and all subsequent Mayor’s Orders.
  • An employer may establish a policy to require an employee who tests positive to report the positive test to the employer. An employer may not disclose the identity of such an employee except to the Department of Health or another D.C. or federal agency responsible for and engaged in contact tracing and the containment of community spread of COVID-19.

 

Retaliation

  • No employer or agent may take adverse employment action against an employee for:
    • Refusing to serve a customer or client, or to work within 6 feet of an individual, who is not complying with the workplace protections;
    • Testing positive for COVID-19, provided that the employee did not physically report to the workplace after receiving a positive test result;
    • Being exposed to someone with COVID-19 and needing to quarantine;
    • Being sick and waiting for a COVID-19 test result;
    • Caring for or seeking to provide care for someone who is sick with COVID-19 symptoms or who is quarantined; or
    • Taking actions to secure any right or protection contained in the Act or to prevent or stop a violation of the Act.
  • An employer may require an employee who has tested positive to refrain from entering the workplace until a medical professional has cleared the employee to return to the workplace or until a period of quarantine recommended by the D.C. Department of Health or Centers for Disease Control (CDC) has elapsed.

 

Enforcement

  • The Mayor may enforce the requirements by conducting investigations, holding hearings, and assessing penalties. The Mayor may assess administrative penalties of up to $50 for a violation of the workplace protection requirements and $500 for a violation of the retaliation prohibition.
  • The Attorney General may enforce the requirements by conducting investigations and instituting actions.

 

Procurement and Grants

  • The Chief Procurement Officer is authorized during the public health emergency and for 90 days thereafter to enter into an indefinite delivery/indefinite quantity (“IDIQ”) contract for Personal Protective Equipment (PPE) and other goods or supplies that permit an entity that is or is similar to a local business enterprise to place orders under the IDIQ contract at the prices specified in the contract.
  • Beginning October 1, 2020, during the public health emergency and subject to the availability of funds, the Mayor may issue grants to eligible small businesses of up to $1,000 for the purchase of or reimbursement for purchases of PPE made on or after August 13, 2020.

 

Mayor’s Order 2020-080: Wearing of Masks in the District of Columbia to Prevent the Spread of COVID-19

 

General Mask Requirements

  • Persons must wear a mask in the common areas of apartments, condominiums, and cooperatives.
  • Businesses, office buildings, and other establishments open to members of the public shall post signage on their exterior doors stating that a person may not enter unless the person is wearing a mask.
  • Such establishments must exclude or attempt to eject those who are not wearing masks or who remove their masks.
  • Employers must provide masks to employees.
  • Persons leaving their residences must wear a mask when they are likely to come into contact with another person, such as being within six feet of another person for more than a fleeting time.
  • Persons who are operating or a passenger in a taxi or a Transportation Network Company vehicle, or any form of public transit, must wear a mask at all such times.

 

Mask Exceptions

  • A person is a resident or guest in a private home or apartment.
  • A person is actually eating, drinking, or legally smoking.
  • A person is engaged in vigorous outdoor exercise and is maintaining social distance of at least 6 feet from every other person.
  • A person is in the water at a swimming pool.
  • A person is in an enclosed office that no one else is permitted to enter.
  • A person is aged 2 years old or younger.
  • A person is unable to wear a mask due to a medical condition or disability, or is physically unable to remove a mask.
  • A person is giving a speech or broadcast or an audience, provided that no one is within six feet of the speaker.
  • A deaf or hard of hearing person needs to read the lips of a speaker.
  • The equipment required for a job precludes the wearing of a mask and the person is wearing that equipment, or when wearing a mask would endanger public safety.
  • A person has been lawfully asked to remove the mask for facial recognition purposes.

 

Note: General social distancing requirements are specified in Mayor’s Order 2020-054:

  • Maintaining at least 6-feet of distance from other individuals.
  • Washing hands with soap and water for at least 20 seconds or using hand sanitizer frequently, or after contact with potentially infected surfaces, to the greatest extent feasible.
  • Covering coughs or sneezes, preferably with a tissue immediately disposed of, or into the sleeve or elbow, not hands.
  • Regularly cleaning high-touch surfaces.
  • Not shaking hands.

 

Additional industry-specific requirements and guidance are available at dc.gov/phasetwo

 

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment or business matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999. 

 

We’ve Moved!

Goldblatt Martin Pozen LLP has moved to a new space.

Effective June 15, 2020, we have moved to 1432 K Street NW – Suite 400.  You are always welcome to visit our new office.