This article is Part 2 of a two-part series providing an overview of laws affecting San Francisco employers.
We continue our summary of San Francisco employment-related ordinances.
Criminal History Information
San Francisco’s “ban the box” ordinance imposes requirements on how employers may use criminal history information of applicants, who will perform at least eight hours of work per week in San Francisco. As of October 1, 2018, the ordinance covers employers with five or more employees.
Employers may not inquire about, or require disclosure of, criminal history on a job application. Employers also may not inquire about an applicant’s criminal history, such as in an interview, and may not run a criminal history background check, until after making a conditional offer of employment. Employers may never inquire about certain types of criminal history, including arrests not leading to conviction, juvenile or expunged convictions, or convictions more than seven years old.
Employers must conduct an “individualized assessment” of any criminal history information obtained before denying employment. The assessment includes factors such as whether the criminal history directly relates to the applicant’s ability to perform the job, the time elapsed since the conviction, and evidence of inaccuracy, rehabilitation, or mitigating factors. If the employer decides not to hire the applicant based on criminal history, the employer must notify the applicant in writing, provide a copy of the background check report, and allow the applicant seven days to provide evidence of inaccuracy, rehabilitation, or mitigating factors. After considering the additional information, the employer must notify the applicant of the final decision in writing.
Employers must submit an annual reporting form to the San Francisco Office of Labor Standards Enforcement (“OLSE”) by April 30 each year. Employers must display an official notice at each workplace or job site, and retain applications and other pertinent records for three years.
San Francisco’s local anti-discrimination ordinance applies to employers with more than five employees. It prohibits employment discrimination based on height and weight, in addition to the categories protected by state and federal law. Employers must make “readily achievable modifications” to furnishings, workplace layout, and equipment to accommodate people of all sizes. Employers must display the current San Francisco Nondiscrimination Notice, located at sf-hrc.org, in a conspicuous place.
Flexible or Predictable Working Arrangements
Employers with 20 or more employees are required to consider written requests for “flexible or predictable working arrangements to assist with caregiving responsibilities” from employees who work at least eight hours per week in San Francisco. Employees may make up to two requests every 12 months, beginning after six months of employment. Employers may request verification of the employee’s caregiving responsibilities.
Employers must meet with the employee within 21 days of the request, and respond to the request in writing within 21 days of the meeting. Employers must state a “bona fide business reason” when denying a request. Employers have 21 days to meet with the employee again if the employee submits a request for reconsideration, and the employer must inform the employee of its final decision in writing within 21 days after that meeting.
Employers may revoke a previously granted flexible or predictable working arrangement with 14 days’ notice to the employee. The employee may then make a new request that does not count toward the “two per year” maximum.
Employers must display an official notice at each workplace or job site, and retain requests and responses for three years.
Paid Parental Leave
San Francisco employers with 20 or more employees must pay a partial weekly salary for up to six weeks to employees receiving California Paid Family Leave (“PFL”) benefits from California’s Employment Development Department (“EDD”) during authorized leave for purposes of bonding with a new child. To be eligible, an employee must have been employed for at least 180 days prior to the start of leave, worked at least 8 hours per week in San Francisco, and performed at least 40 percent of their total work hours in San Francisco.
The ordinance requires the employer to provide the employee an amount equal to 100 percent of the employee’s weekly wages, less the amount of PFL the employee receives. Employers may apply up to two weeks of the employee’s accrued vacation leave to help meet their obligation. Employers may not require an employee to use sick leave.
Employers must display an official notice at each workplace or job site, and include a description of the right to paid parental leave in their employee handbook. Employers must retain records establishing compliance for three years.
Health Care Security
San Francisco requires for-profit employers with 20 or more employees, and nonprofit employers with 50 or more employees, to spend a minimum amount of money on health benefits for employees who have been employed for more than 90 days and work at least eight hours per week in San Francisco. In 2018, the health care expenditure rate for employers with 100 or more employees is $2.83/hour ($1.89/hour for covered employers with 99 or fewer employees). The rate increases each year.
Employers must display an official notice at each workplace or job site, and retain records establishing compliance for four years.
Employers with 50 or more full-time employees must offer commuter benefits to employees who work 20 or more hours per week. Benefits may include a pre-tax transit allowance, a transit pass, or employer-provided transit. Employers must register with the Bay Area Air Quality Management District and maintain records establishing compliance for three years. For current information on the Bay Area Commuter Benefits Program, go to 511.org/employers/commuter/overview.
San Francisco has a number of laws providing protections to employees in certain industries, including retail, grocery, janitorial, security, and sanitation. Employers in these industries should consult with employment counsel familiar with the various local ordinances to develop or update policies and practices.
Finally, the San Francisco Office of Labor Standards Enforcement maintains a website, where employers may obtain further and up-to-date information and required posters. The website address is here: sfgov.org/olse.