Among other challenges facing San Francisco employers in 2014 will be complying with the San Francisco Family Friendly Workplace Ordinance, which became operative on January 1, 2014. The new ordinance requires employers with 20 or more employees to allow their San Francisco employees who work at least eight hours per week (on a regular basis) and who have been employed six months or more to request a “flexible” or “predictable” working arrangement to assist with caregiving responsibilities. It also prohibits employers from taking adverse employment actions based on an employee’s caregiver status. The Board of Supervisors is currently in the process of amending the Ordinance to clarify that San Francisco employers who employ 20 or more employees anywhere are covered by the Ordinance.
For purposes of the Ordinance, care-giving responsibilities include assisting with the care of: (1) a child or children younger than the age of 18; (2) a person with a serious health condition who is related to the employee by blood, legal custody, marriage or domestic partnership, as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent; or (3) a parent (age 65 or older) of the employee. Under the Ordinance, the term “serious health condition” is defined more broadly than under the Family and Medical Leave Act (FMLA) and the California Family Rights Act as a condition that either requires in-patient care at a hospital, hospice, or residential health care facility or continuing treatment or continuing supervision by a health care provider. Covered employees can request a “Flexible Working Arrangement” or a “Predictable Working Arrangement” twice every 12 months, and may also make additional requests upon experiencing “Major Life Events” such as the adoption, birth of, or foster care placement of a child or an increase in the employee's care giving duties for a covered family member with a Serious Health Condition.
A “Flexible Working Arrangement” is a change in the employee's terms and conditions of employment providing flexibility to assist with caregiving responsibilities, and may include, but is not limited to, a modified work schedule, changes in the employee’s start and/or ending times, part-time employment, job sharing arrangements, working from home, telecommuting, a reduction or change in work duties, or part-year employment. On the other hand, a “Predictable Working Arrangement” is a change in the employee’s terms and conditions of employment providing scheduling predictability to assist with caregiving responsibilities, such as a set schedule for an employee who would otherwise have a variable work schedule.
An employee seeking a flexible or predictable working arrangement must submit a written request to his or her employer describing the accommodation requested, the effective dates and duration of the accommodation, and must explain how the request is related to care-giving responsibilities. The employer then has 21 days to meet with the employee regarding the request, and must then respond in writing to the employee’s request within 21 days of the meeting.
An employer who denies a request must explain the denial in a written response that sets out a bona fide business reason for the denial and provides the employee with notice of the right to request reconsideration (including the relevant text of the Ordinance). The Ordinance provides a nonexhaustive list of potential bona fide business reasons for denying a request, including: (1) the identifiable cost of accommodating the request, including the cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another facility; (2) a detrimental effect on the employer’s ability to meet customer or client demands; (3) an inability to organize work among other employees; and (4) a lack of sufficient work available during the time the employee requests to work. Moreover, where a request for an accommodation is denied, the employee has 30 days to submit a request for reconsideration in writing, which, in turn, requires the employer to schedule another meeting within 21 days of the request and to issue a final decision in writing within 21 days of the meeting, including a description of the bona fide business reason for denying the request.
Although the Ordinance provides that either an employer or an employee may revoke an accommodation on 14 days’ written notice, an employee may request a different accommodation which does not count against the yearly limit each time a revocation occurs.
In addition to requiring employers to consider requests for flexible and predictable working arrangements, the Ordinance also prohibits employers from taking any adverse employment action against an employee because of caregiver status, in retaliation for exercising his or her rights under the Ordinance, or for cooperating in any enforcement action.
The Ordinance imposes new posting and recordkeeping requirements, including a requirement to post notices in English, Spanish, Chinese and any language spoken by more than 5 percent of the employer’s workforce. A copy of the official notice approved by the City’s Office of Labor Standards Enforcement (OLSE) can be downloaded here: http://sfgsa.org/index.aspx?page=6305
Records relating to requests for accommodations must be kept for three years. Failure to keep such records, or to make them available for inspection, creates a presumption that an employer has violated the requirements of the Ordinance.
The Ordinance provides for administrative enforcement through the OLSE and also provides the City with the right to pursue enforcement through the courts. Significantly, however, the OLSE is not empowered to second guess an employer’s determination that it has a bona fide business reason for denying an employee’s request for a scheduling accommodation. Rather, the OLSE authority is limited to determining whether an employer has complied with its procedural, posting and recordkeeping obligations, as well as determining whether an employer has discriminated against an employee due to his or her caregiver status or has retaliated against an employee for exercising his or her rights or cooperating in an enforcement action. For 2014, the OLSE is limited to issuing warnings and notices to correct violations. On or after January 1, 2015, it can also impose administrative penalties and seek liquidated damages in any lawsuit. Essentially, the Ordinance permits the OLSE to require employers who violate the ordinance to pay employees an administrative penalty of up to $50 per employee per day of violation, as well as to seek $50 per employee per day to be paid to the City where prompt compliance is not forthcoming. Should the City pursue an enforcement action in Court, it is also entitled to seek $50 per employee per day of violation in liquidated damages for the employees in addition to other relief, such as reinstatement of a wrongfully terminated employee, and reasonable attorney fees.
As with several other San Francisco employment ordinances, the Family Friendly Workplace Ordinance permits an employer subject to a collective bargaining agreement to waive its requirements, but only through an express waiver in the collective bargaining agreement in “clear and unambiguous terms.”
So far, only San Francisco and Vermont have passed laws expressly empowering employees to request flexible and/or predictable working arrangements to accommodate caregiver schedules. However, similar laws are under consideration in other jurisdictions, and employers should continue to monitor this issue.
Additionally, employers with workers in the City and County of San Francisco should take the following steps:
Update San Francisco worksite postings with the requisite poster from the San Francisco OLSE.
Review record-keeping protocols to ensure compliance with the Ordinance;
Update relevant employer handbooks and personnel policies;
Develop appropriate forms (for example, a model request form can be found at the OLSE Internet site here: http://sfgsa.org/index.aspx?page=6305);
Seek to amend any collective bargaining agreements to include an express waiver where necessary;
Review any agreements with temporary and staffing services agencies to ensure their compliance with the Ordinance.
Employers are encouraged to consult with a Sedgwick LLP employment lawyer to help them in this process.