Blog: The California Workplace Advisor

Last week, the San Francisco Board of Supervisors approved an ordinance that requires employers to consider workers’ requests for flexible work arrangements and predictable work schedules due to caregiving responsibilities.  The ordinance also prohibits discrimination based on an employee’s status as a caretaker or parent.  Edwin M. Lee, the City’s Mayor, has stated his intention to sign the measure into law, which is set to take effect January 1, 2014.

One of the main goals of the ordinance is to make San Francisco a more family-friendly place to raise children.  San Francisco currently has the lowest percentage of children in any major city in the country, with more dogs than kids.  The other stated purpose of the law is to assist workers whose caregiving obligations are compromised by working long hours or on short notice, and to prevent discrimination and retaliation against parents and caregivers who request an accommodation.

Who It Covers

The ordinance applies to all San Francisco employers with 20 or more workers.  In order to be eligible, employees must have worked six or more months for the employer and must regularly work at least eight hours per week.  Once eligible, employees have the right to request a flexible work arrangement or greater scheduling predictability in order to care for a spouse, domestic partner, parent, sibling, grandchild, or grandparent with a serious health condition; or to care for a child or a parent over the age of 64.  Employees may generally make two requests per year, unless there is also a “major life event” which includes birth, adoption or increased caregiving duties due to a family member’s serious health condition, in case which the employee is entitled to three requests per year.

Required Contents of the Written Request And Response

Employees may request accommodation of the number of hours the employee is required to work; when the employee is scheduled to work; where the employee is required to work; work assignments; and predictability in a work schedule.  Employees must submit written requests that explain how the request is related to caregiving, specify the arrangement applied for, and provide the requested effective date and duration of the arrangement.  An employer may require verification of the employee’s caregiving responsibilities.

The employer then must meet with the employee within 21 days of the request, and respond within writing within 21 days of the meeting, although the deadline to respond may be extended if the employee agrees to it and the extension is confirmed in writing.  If granted, the accommodation may be revoked by either employee or employer with 14 days’ written notice to the other party, and the employee then has the right to request a different flexible or predictable working arrangement.

If the employer denies the request, the denial must be explained in a written response setting out a bona fide business reason for the denial and must notify the employee of the right to request reconsideration.  Bona fide business reasons include (1) identifiable costs, such as the cost of productivity loss, retraining or hiring of employees, or transferring employees from one facility to another; (2) a detrimental effect on ability to meet customer or client demands; (3) inability to organize work among other employees; and (4) insufficiency of work to be performed during the time the employee proposes to work.

The employee then has the right to submit a written request for reconsideration within 30 days of the denial.  The employer must meet with the employee again within 21 days, and must inform the employee in writing of the employer’s final decision (including the supporting bona fide business reasons for the denial) within 21 days of the second meeting.

No Discrimination or Retaliation

The ordinance makes it unlawful to interfere with an employee’s exercise of rights granted under the ordinance or to retaliate against an employee for exercising those rights.

Employer Notice, Posting and Records Retention Requirements

The Office of Labor Standards Enforcement (“OLSE”), the agency charged with enforcement, will issue a poster informing employees of their rights under the ordinance, which employers must post at any workplace or job site where any employee works and in any language spoken by at least five percent of the employees at the job site.  Additionally, employers are required to retain documentation for three years from the date of the request for a flexible or predictable working arrangement, and must allow the OLSE access to the records upon notice and at a mutually agreeable time.

Enforcement

The OLSE is empowered to investigate alleged violations of the ordinance’s administrative, posting and documentation requirements.  Importantly, it may not question the validity of the employer’s bona fide business reason for denying an employee’s accommodation request.  In the first year that the law is in effect, the OLSE will only issue warnings and notices.  Thereafter it may impose an administrative penalty of up to $50 per day for each employee whose rights were violated, which is payable to the employee.  Employees may complain to the OLSE about any violation of the ordinance pertaining to their own request only after their request for reconsideration was denied as outlined above.  Additionally, the City Attorney’s office may file a civil action against an employer that violates the ordinance.

Exceptions

The ordinance does not apply to employees covered by a collective bargaining agreement (“CBA”), to the extent that the requirements of the ordinance are waived in clear and unambiguous terms in the CBA.  Additionally, exemptions may be granted for City and non-City employees in public health or public safety positions.

Conclusion

In addition to the already onerous requirements of the Paid Sick Leave and Health Care Security Ordinances (not to mention the distinction of having the highest minimum wage in the country), the Family Friendly Workplace Ordinance imposes more onerous administrative and compliance burdens on the San Francisco employers.  We will keep you apprised of the notice requirements and other guidance related to the new ordinance when issued.