San Francisco Employee Protections 2019
The City & County of San Francisco shields workers from employer exploitation through the implementation of various laws conferring rights, remedies, and protections on employees. Not surprisingly, San Francisco employees are some of the nations most protected workers. This article provides a broad survey of some of the many laws actively protecting San Francisco employees. For more information about these laws, San Francisco employee protections, or to discuss an employer violation, please contact Astanehe Law for your consultation.
No Weight or Height Discrimination in San Francisco
San Francisco’s general anti-discrimination law is codified at San Francisco Police Code Article 33. Article 33 prohibits discrimination based on the typical protected characteristics also covered federally by Title VII and at the state level by FEHA, but also uniquely outlaws discrimination based on height and weight.
The law applies to businesses employing six or more people, including owners and management. San Francisco Police Code § 3033(c)(1). The law protects employees and applicants.
After an employee successfully proves discrimination, the employer can refute the charge by arguing a justifiable reason for the discrimination existed or that it acted according to an existing seniority system or employee benefits system. San Francisco Police Code §§ 3033(b), (c)(2).
Additionally, the San Francisco Police Code includes an anti-retaliation provision. San Francisco Police Code § 3305.2(b). The provision protects employees who:
- Oppose anything Article 33 makes unlawful;
- Support Article 33 or its enforcement;
- File a complaint under Article 33 with San Francisco Human Rights Commission or in a court of law; or,
- Testify, assist, or participate in any Article 33 investigation, proceeding, or litigation.
The law contains a private right of action, enabling an aggrieved employee to file a lawsuit in court. An employer that violates Article 33 may be liable for general damages, special damages, treble damages, and punitive damages of up to $400 per violation. San Francisco Police Code § 3306. Additionally, the law contains an attorney fee and court cost provision, which means, upon losing at trial, the employer must pay for the employee’s attorney bill. Id.
Alternatively, an aggrieved employee may file a complaint with the San Francisco Human Rights Commission (“HRC”). San Francisco Police Code §§ 3307(a), (b). The HRC must investigate the matter within ten days and may either conduct mediation or refer the matter to the San Francisco City Attorney office for prosecution. Id.
An aggrieved employee has one year from the date of the violation to file in court or at the HRC.
If your employer or potential employer has discriminated you due to your height, weight, or any other protected characteristic, please contact Astanehe Law for your consultation.
Prohibition Against AIDS and Other Disease Discrimination
The San Francisco Board of Supervisors seeks to eliminate discrimination based on a person having AIDS or other diseases that are not easily transmitted. Employers are prohibited against discriminating against persons with AIDS or any “disease that cannot be transmitted by casual contact.” San Francisco Police Code §§ 3803, 3852. This means that it is unlawful for San Francisco employers to engage in discriminatory conduct like rejecting a candidate who has AIDS or terminate someone who contracts AIDS during the employment. However, employers can discriminate against someone with AIDS or another disease where it is necessary because of the particular job and no other means of accommodating the employee exists. San Francisco Police Code § 3803(b). Additionally, San Francisco employers can discriminate based on having AIDS or another disease where the employee or applicant will endanger the health and safety of themselves and others. San Francisco Police Code § 3803(b)(3).
Under no circumstance can a San Francisco employer force an employee or applicant to undergo AIDS testing. San Francisco Police Code §§ 3809, 3854.
The law contains an anti-retaliation provision that prohibits employers from discriminating against a worker for associating with people who have AIDS or other diseases. San Francisco Police Code § 3808. Additionally, the provision protects employees who assert their Article 38 rights, file an Article 38 complaint, cooperate with any Article 38 investigation or litigation, or support Article 38 enforcement. Id.
The law contains a private right of action, which allows aggrieved employees to bring a lawsuit against their employer. San Francisco Police Code § 3811(b). Successful employees can recover actual damages, which are subject to tripling, and punitive damages. San Francisco Police Code §§ 3810, 3855. The law contains an attorney fee provision. Id.
Alternatively, an aggrieved employee can file a complaint with the HRC. San Francisco Police Code §§ 3811, 3856. The HRC is empowered to investigate, mediate, and refer the matter to the San Francisco Attorney General. Id.
An aggrieved employee has two years from the date of the violation to file in court or at the HRC.
If your employer or potential employer has discriminated you for having AIDs or another type of disease, please contact Astanehe Law for your consultation. Employers perpetrating this outdated form of discrimination founded on 80s era racism, homophobia, and hatred must be held accountable.
San Francisco Paid Family Leave Ordinance
Although California provides partially paid leave for family caregiving or bonding with a newborn, it does not fully supplement an employee’s salary. California Unemployment Code § 3300 et seq. California employees are entitled to only six weeks of partially paid leave per year at 55% of their weekly wage. Id. The maximum weekly benefit is capped at $1,129 per week. Id. Having to contend with the nation’s highest cost of living, many San Francisco residents are unable to afford to exercise their right to family leave at partial pay. With this in mind, San Francisco became the first jurisdiction in the Nation to provide fully paid parental leave after passing the San Francisco Paid Family Leave Ordinance in 2016. The Ordinance supplements the California Paid Family Leave Act by providing compensation to the employee so that they reach 100% of their weekly wage during the leave. San Francisco Police Code § 3300H.4(b)(1)(A).
The San Francisco Paid Family Leave Ordinance applies to any employee who:
- Worked for the employer for at least 180 days before the start of their leave;
- Performed at least 8 hours of work per week within San Francisco;
- Worked at least 40% of their total weekly hours in San Francisco; and,
- Are eligible to receive California Paid Family Leave benefits.
The Ordinance applies to employers that employ 20 or more employees, including temporary workers.
The California Paid Family Leave cap of $1,129 per week still applies. This means that an employee receiving a weekly benefit under the San Francisco Paid Family Leave Ordinance will not receive more than $1,129 per week. San Francisco Police Code § 3300H.4(b)(2).
Employers must continue paying employees their supplemental weekly benefit where they terminate the employee during the leave period. San Francisco Police Code § 3300H.4(b)(3).
Employers can apply up to two weeks of an employee’s unused accrued vacation leave to meet their San Francisco Paid Family Leave Ordinance obligation. San Francisco Police Code § 3300H.4(b)(5).
Should an employee quit their job within 90 days of returning to work following paid family leave, the employee must reimburse the employer for their supplemental payments, but only if the employer requests reimbursement in writing. San Francisco Police Code § 3300H.4.(e).
The San Francisco Paid Family Leave Ordinance contains an anti-retaliation provision, which means that an employer cannot discharge, demote, suspend, discriminate against, or take adverse action against any person in retaliation for exercising their rights under the San Francisco Paid Family Leave Ordinance. San Francisco Police Code § 3300H.7(b). Employee rights include:
- The right to collect the San Francisco Paid Family Leave weekly benefit amount;
- The right to file a lawsuit in court for violations of the San Francisco Paid Family Leave Ordinance;
- The right to file a complaint of suspected San Francisco Paid Family Leave Ordinance violation with the San Francisco Office of Labor Standards Enforcement (“OLSE”);
- The right to inform any person about the employer’s infringement;
- The right to cooperate with the San Francisco OLSE in investigations of alleged violations; and,
- The right to inform any person of their rights under the San Francisco Paid Family Leave Ordinance. Id.
The San Francisco Paid Family Leave Ordinance contains a private right of action. San Francisco Police Code § 3300H.8(c)(1). Before filing suit, however, an employee must inform the San Francisco OLSE and the San Francisco City Attorney of their employer’s violation. San Francisco Police Code § 3300H.8(2). The City has 90-days to bring an action, determine no violation occurred, or let the employee pursue their private right of action.
Damages for violations of the Ordinance include reinstatement, back pay, payment of supplemental compensation unlawfully withheld, payment of additional sums as liquidated damages at $50 per day of violation, and injunctive relief. San Francisco Police Code § 3300H.8(c)(3). The San Francisco Paid Family Leave Ordinance also contains an attorney fee provision. Id.
If your employer has infringed upon the San Francisco Paid Family Leave Ordinance, contact Astanehe Law today for your consultation!
San Francisco’s Worker Retention Ordinances
The City & County of San Francisco has some of the most progressive laws regarding worker retention in the nation. The City prioritizes community and seeks to keep networks of employees intact through a series of worker retention ordinances that prevent the firing of certain classes of workers before, during, and shortly after a business is transferred, sold, or merged. San Francisco Police Code §§ 3300C, 3300D, & 3300E (“Retention Ordinances”). Workers covered by the Retention Ordinances include security, janitorial, building maintenance, grocery, and hospitality industry workers. Id. If you work in one of these industries, and your employer is changing or has recently changed, then one of the Retention Ordinances likely protects you.
Although each of the Retention Ordinances possess slight distinctions, the ordinances generally require:
- Existing owners to post a notice of change in control that informs employees that a new owner will soon take control of the company or their worksite. San Francisco Police Code §§ 3300E.5, 3300D.5.
- New owners to retain most employees during a 90-day transition period. San Francisco Police Code §§ 3300C.2, 3300E.3, & 3300D.4.
- New owners can only terminate workers (1) for cause; or, (ii) Upon determining that fewer employers are necessary at the worksite or to perform the contract. San Francisco Police Code §§ 3300C.2, 3300E.4, & 3300D.4.
The Grocery Worker Retention Act requires new employers to prepare a performance evaluation for each worker upon the completion of the 90-day transition period. San Francisco Police Code § 3300D.4.(d).
All of the Retention Ordinances contain privates right of actions, which enable aggrieved employees to sue their current or former employers for violations of the Retention Ordinances, including for wrongful termination. San Francisco Police Code §§ 3300C.3, 3300e.6, & 3300D.6. Damages include back pay awards for each day of violation, reinstatement, front pay, the full value of benefits, injunctive relief, and attorney fees and court costs. Id. Further, hospitality industry workers are entitled to an additional award of $50 per day of violation.
If your employer has violated one of the Retention Ordinances, please contact Astanehe Law for your consultation!
San Francisco Employees’ Right to Privacy in the Workplace and While Off-Duty
All San Francisco enjoy the full benefit of the right to privacy in the workplace. In light of this right, San Francisco seeks to protect its employees from unreasonable inquiry and investigation of off-the-job conduct, associations, and activities not directly related to actual job performance. San Francisco Police Code § 3300A.1.
San Francisco employers cannot adopt, make, or enforce policies forbidding or preventing employees from engaging or participating in personal relationships, organizations, activities, or associations. San Francisco Police Code § 3300A.3. Further, employers cannot demand, require, or request employees submit to any blood, urine, or encephalographic test as a condition of continued employment. San Francisco Police Code § 3300A.5.
The Ordinance applies to anyone working in San Francisco, except police, Sherriff, firefighters, police dispatchers; and, any person operating emergency service vehicles for the City. San Francisco Police Code § 33033A.2(1).
The Ordinance includes a private right of action. San Francisco Police Code § 3300A.8. Attorney fees are recoverable. Id.
San Francisco Employees’ Right to Privacy in the Workplace and While Off-Duty
The gender wage gap persists in harming women in the workforce. Since wages are often based on employees’ prior salaries and wage rates, the gender wage gap perpetuates gender wage inequity. To combat gender-based wage disparities in employment, the San Francisco Board of Supervisors passed the Parity in Pay Ordinance which prevents prior earnings from weighing down a woman’s salary throughout her career.
The Ordinance prevents employers from inquiring, relying on, or considering an applicant’s salary history when considering hiring an applicant or setting their starting salary. San Francisco Police Code § 3300J.4(a). Additionally, employers cannot refuse to hire an applicant because they refused to disclose salary history. San Francisco Police Code § 3300J.4(d). Further, employers cannot release current or former employee salary history to prospective employers. San Francisco Police Code § 3300J.4(d).
Of course, employees remain free to voluntarily disclose their salary history. San Francisco Police Code § 3300J.4(e).
The Parity in Pay Ordinance does not contain a private right of action. Instead, aggrieved applicants or employees may file a complaint with the San Francisco OLSE. San Francisco Police Code § 3300J.6.
In 2017, the San Francisco Board of Supervisors passed the Lactation in the Workplace Act. San Francisco Police Code, Article 33I. The Board of Supervisors intended to provide a supportive environment to enable working mothers to breastfed or express milk during working hours. San Francisco Police Code § 3300I.2(m).
Now, San Francisco employers must provide lactation accommodations, including:
- Break time to accommodate an employee to express breast milk for their child. San Francisco Police Code § 3300I.4(a);
- Provide a suitable, private, and nearby lactation location. San Francisco Police Code § 3300I.4(b)(1);
- Develop & implement a lactation accommodation policy informing employees of their Lactation rights, and the procedure for requesting lactation accommodations. San Francisco Police Code § 3300I.5(a); and,
- Engage in the interactive process to determine the appropriate lactation break periods and lactation location. San Francisco Police Code § 3300I.5(a).
The Lactation in the Workplace Ordinance includes an anti-retaliation provision, that prohibits employers from interfering, restraining, or denying an employee’s rights under the Ordinance, including:
- Requesting lactation accommodations;
- Filing a complaint with the San Francisco OLSE; or,
- Informing other employees about their rights under the Ordinance. San Francisco Police Code § 3300I.7(a).
The Lactation in the Workplace Ordinance does not contain a private right of action. Aggrieved employees may file a complaint with the San Francisco OLSE, which is empowered to investigate violations, conduct hearings, order temporary relief, issue warnings and notices to correct violations, and impose administrative penalties. San Francisco Police Code § 3300I.8.
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