The San Francisco Family Friendly Workplace Ordinance is set to take effect on January 1, 2014. The new law will require employers to consider workers’ requests for flexible work arrangements and predictable work schedules due to caregiving responsibilities.

Obligations Under the Ordinance

Eligible employees have the right to request a flexible work arrangement or greater scheduling predictability 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. The types of requests employees may make include flexibility or regularity in the number of hours the employee is required to work, shift starting or ending times, job location, schedule predictability, or other issues relating to flexibility or predictability, as the case may be.

Employees must submit written requests for accommodation that explain how a request is related to caregiving, specify the arrangement applied for (i.e., number of hours the employee is required to work, or predictability in a work schedule), and provide the requested effective date and duration of the arrangement. Employers may require verification of an employee’s caregiving responsibilities.

Employees may make two requests every 12 months, 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 of a “major life event,” employees are entitled to three requests per year.

After receiving an employee’s request, the employer must meet with the employee within 21 days to discuss the request. The employer must respond in writing within 21 days of the meeting. The employer or employee may revoke an accommodation with 14 days’ written notice. If an accommodation is revoked, the employee has the right to request a different flexible or predictable work arrangement. The employee also may request reconsideration of a denial.

The ordinance merely requires the employer to consider the request and follow the above procedures. So, it is lawful for the employer to deny a request. However, any denial must be in writing. The employer must explain the bona fide business reason for the denial and notify the employee of his or her right to request reconsideration within 30 days of the denial. 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) detrimental effect on the employer’s 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.

Employers are required to retain documentation for a period of three years from the date of any request for a flexible or predictable working arrangement, and must allow the OLSE access to those records, at a mutually agreeable time, in order to monitor employer compliance with the ordinance.

The San Francisco Office of Labor Standards Enforcement (“OLSE”) is the agency charged with enforcing the ordinance. The OLSE will issue a poster informing employees of their rights under the law. Employers must post the poster at any job site where any employee works. Employers will have to post the notice in English, Spanish, Chinese and any language spoken by at least five percent of the employees at the job site.

Employers Covered by the Ordinance

The ordinance applies to all San Francisco employers who regularly employ 20 or more employees, including agents or any other persons, even if employees are hired through a temporary services or staffing agency. The San Francisco Board of Supervisors is considering an amendment specifically applying the ordinance to employers with 20 employees anywhere, rather than 20 employees within San Francisco. The State of California, the federal government, or any local government entities other than the City of San Francisco are exempt from the ordinance.

Eligible Employees

Eligible employees must be “caregivers” within the meaning of the ordinance. They must have worked at least six months for the employer, and must regularly work at least eight hours per week within San Francisco’s geographic boundaries. “Employee” includes participants in any Welfare-to-Work programs including any public assistance program administered by the Human Services Agency, (i.e., CalWORKS), that require a public assistance applicant or recipient to work in exchange for their grant.

The ordinance does not apply to employees covered by collective bargaining agreements, to the extent that the agreement contains a clear, unambiguous waiver of the ordinance’s requirements. Further, exemptions may be granted for City and non-City employees working in public health or public safety positions.

Consequences for Non-compliance

The OLSE is not empowered to second-guess an employer’s legitimate business justification for denying a request. But the OLSE may investigate alleged violations of the ordinance’s procedural requirements and posting obligations. The OLSE may commence administrative proceedings or sue the employer in court.

During 2014, the OLSE will be issuing only notices and warnings for violations of the ordinance. Thereafter, the OLSE may impose an administrative penalty up to $50.00 per day, and may seek another award of $50.00 per day to each employee whose rights were violated.

The ordinance prohibits retaliation against employees who make requests, seek reconsideration of denials, oppose unlawful employer policies, inform others of their rights, and other protected activity. It appears, however, that only the City may enforce the ordinance. It remains to be seen whether employees will be able to use the ordinance as a predicate for a wrongful termination claim.

Recommendations

California employers with employees working in San Francisco should become familiar with the ordinance’s detailed procedural rules so they properly and timely handle requests for flexible work arrangements. The new ordinance imposes significant administrative and recordkeeping requirements as well. Small businesses will have to ensure they have the resources to comply. Larger companies’ local management must be trained how to respond to scheduling requests that may fall within the ordinance as well.

X