San Francisco Employee Protections 2019 Part III
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. To read our part one, please click here. For more information about these laws, San Francisco employee protections, or to discuss an employer violation, please contact Astanehe Law for your consultation.
The San Francisco Family Friendly Workplace Ordinance
The San Francisco Family Friendly Workplace Ordinance gives employees the right to request flexible or predictable work arrangements to assist with caregiving responsibilities. Under the Ordinance, an employee may request a flexible or predictable work arrangement while they are assisting with care for: (1) A child under 18; (2) A family member with a serious health condition; or, (3) A parent that is 65 or older. San Francisco Administrative Code § 12Z.4.
Employees are covered by the Family Friendly Workplace Ordinance if:
- They are employed in San Francisco;
- For six or more months at any time; and,
- Regularly work at least eight hours per week.
Employers with twenty or more employees, including outside of San Francisco, are subject to the Ordinance.
The Family Friendly Workplace Ordinance defines a family relationship as a relationship by blood, legal custody, marriage or domestic partnership, including spouse, domestic partner, child, parent, sibling, grandchild, or grandparent. San Francisco Administrative Code § 12Z.3.
Procedure for Making Requests
To facilitate an orderly and fair process for requesting time off, the Family Friendly Workplace Ordinance obligates employers and employees to a procedure for making requests.
Employees’ must make requests in writing. San Francisco Administrative Code § 12Z.5. The request must be for a flexible or predictable work arrangement, explain how it is related to caregiving, and specify the effective date and duration of the desired change. Id. Should the employee make a verbal request, the employer is obligated to request the employee put the request in writing. Id.
Following the initial request, the employer has 21 days to hold a meeting with an employee regarding the request. San Francisco Administrative Code § 12Z.6. The employer then has 21 days following the meeting to respond. Id. If the employer denies the employee’s request, it must do so in writing and offer a business reason for the denial. Id. Additionally, the employer must provide notice of the employee’s right to request reconsideration and include a copy of the applicable provision. Id.
The employee then has 30 calendar days to request reconsideration in writing. San Francisco Administrative Code § 12Z.6. The employer must meet with the employee regarding reconsideration within 21 days. Id.
If the employer grants the employee’s request, it must do so in writing. San Francisco Administrative Code § 12Z.6.
Types of Flexible or Predictable Working Arrangements
The Family Friendly Workplace Ordinance permits employees to request changes in the terms and conditions of their employment to provide flexibility while assisting with familial caregiving responsibilities. Requested changes may include:
- The number of hours the employee works;
- The times when the employee is required to work;
- The location the employee is required to work;
- Work assignments or other factors; or,
- Predictability in work schedule. San Francisco Administrative Code § 12Z.4.
An employer can request employee verification of caregiving responsibilities. San Francisco Administrative Code § 12Z.4(c). However, the request for verification must be reasonable and should not be undertaken to deter the employee from making the request. Id.
An employer may request written confirmation from a doctor where the employee’s request relates to a family member with a serious health condition. San Francisco Administrative Code § 12Z.3. The Ordinance defines a serious health condition as an “illness, injury, impairment, or physical or mental condition that involves,” inpatient care, or continuing treatment from a healthcare provider. Id.
Where an employee requests relates to providing care to a child or parent, the employer is permitted to require verification of caregiver status, such as proof of the family member’s age. San Francisco Administrative Code § 12Z.3.
Verification requests that violate the right to privacy may give rise to civil liability.
Employer Justifications for Request Denial
An employer is allowed to deny an employee’s request under the Ordinance for a business reasoning, including:
- An identified cost to honor the requested change;
- Detrimental effects on serving client or customer needs;
- Inability to organize work among other employees;
- Insufficiency of work to be performed during the alternative time employee proposes to work. San Francisco Administrative Code § 12Z.5.
Employer or Employee May Revoke Flexible or Predictable Working Schedule
Both employers and employees are free to revoke a previously agreed upon working arrangement by providing 14-days written notice. San Francisco Administrative Code § 12Z.5.
Limitations on Employee’s Right to Make Requests
Under the San Francisco Family Friendly Workplace Ordinance, employees are limited to only two requests in any twelve-month period. San Francisco Administrative Code § 12Z.4. However, an employee is free to make an additional request where an employer revoked an agreed upon working arrangement. Id. Further, an employee who experiences a major life event can make an additional request. Id.
The Ordinance defines a major life event as:
- The birth or adoption of a of a child; and,
- An increase in caregiving duties for a family member with a serious health condition. San Francisco Administrative Code § 12Z.3.
A request for reconsideration of an employer’s denial does not apply to the two-month limitation. San Francisco Administrative Code § 12Z.3.
Employers Required to Inform Employees About Paid Sick Leave Rights
Under the San Francisco Family Friendly Workplace Ordinance, employers must post an official notice of employee’s rights under the Ordinance at the job site. San Francisco Administrative Code § 12Z.8. The notices must be in English, Spanish, Chinese, and any other language spoken by at least 5% of the employees at the job site. Id.
Employers must retain records establishing compliance with the Family Friendly Workplace Ordinance for at least three years from the date of each employee request. San Francisco Administrative Code § 12Z.9.
Employers may not force waiver of the right to request flexible or predictable work arrangements to assist with caregiving responsibilities. San Francisco Administrative Code § 12Z.12. However, employees covered by a collective bargaining agreement may waive their rights under the Ordinance. Id.
The San Francisco Family Friendly Workplace Ordinance contains an anti-retaliation provision. San Francisco Administrative Code § 12Z.7. Under the provision, employers cannot fire, threaten to fire, demote, suspend, discriminate, or take adverse action in retaliation for exercising protected rights, including the right to:
- Requesting a flexible or predictable work schedule;
- Requesting reconsideration of a denial;
- Filing a complaint with OLSE;
- Filing a lawsuit in court;
- Informing any person of the employer’s violation of the Ordinance; and,
- Cooperating with a lawsuit or OLSE investigation of the Ordinance. San Francisco Administrative Code § 12Z.7.
OLSE is authorized to investigate violations and hold hearings. San Francisco Administrative Code § 12z.10. The Ordinance does not contain a private right of action. Yet, the City Attorney may initiate a civil action against the employer for violations of the Ordinance. Id.
Employees are entitled to damages of $50 for each day a violation occurred or continued. San Francisco Administrative Code § 12Z.10.
San Francisco’s Fair Chance Ordinance
The San Francisco Fair Chance Ordinance obligates employers to follow strict rules regarding the use and consideration of applicant and employee arrest and conviction records. Under the Fair Chance Ordinance, employers are required to:
- Not ask about an applicant’s arrest or conviction record until after offering employment;
- Include in all job postings that qualified applicants with arrest and conviction records will be considered for the position;
- Post an official Fair Chance Ordinance Notice at every job site; and,
- Before making an employment decision based on an individual’s conviction or unresolved arrest, give the individual an opportunity to present evidence of inaccurate information, rehabilitation or other defensive factors. San Francisco Police Code, Article 49.
The Fair Chance Ordinance applies to all positions where an employee works at least eight hours per week in San Francisco, including temporary, seasonal, part-time, contract, contingent, and commission-based work. San Francisco Police Code § 4903. Also, the Ordinance covers work through an employment agency, and vocation or educational training regardless of pay.
Employers with five or more employees worldwide must comply with the Fair Chance Ordinance. San Francisco Police Code § 4903. Additionally, all San Francisco contractors, subcontractors, and leaseholders of City property must comply with the Ordinance. San Francisco Administrative Code § 12T.
Prohibition on Inquiries into Criminal Record
The Fair Chance Ordinance prohibits covered employers from asking about an arrest or conviction record until after offering employment. Employment applications cannot inquire or require applicants to disclose any facts or details of their conviction history, unresolved arrests, or any other criminal justice system components. San Francisco Police Code § 4904.
But, an employer can ask for written consent to a background check on an application if the employer includes language that a third party will conduct the background check and it will only obtain the information after offering employment. San Francisco Police Code § 4904
Procedure for the use of Criminal History Information in Employment Decision
San Francisco employers cannot request or consider information related to:
- An arrest not leading to a conviction, except for unresolved arrests;
- Participation in a diversion or deferral of judgment program;
- A dismissed, expunged, otherwise invalidated, or inoperative conviction;
- A conviction in the juvenile justice system;
- An offense other than a felony or misdemeanor, such as an infraction;
- A conviction that is more than seven years old, except where the prospective position supervises minors, dependent adults, or persons over 65 years old; or,
- A conviction for decriminalized conduct, including the non-commercial use and cultivation of cannabis. San Francisco Police Code § 4904.
When making an employment decision based on an applicant or employee’s conviction history, the employer must perform an individualized assessment considering only convictions directly related to the employment position, the time elapsed since the conviction, and evidence of inaccuracy, rehabilitation, or other mitigating factors. San Francisco Police Code § 4904(f). Essentially, the employer must treat each applicant as an individual and not automatically reject someone due to their criminal history.
If the employer intends to reject the applicant after performing the individualized assessment, the employer must first provide the individual notification of the impending adverse action and the basis for it. San Francisco Police Code § 4904(g). The employer is also required to provide the individual with a copy of the background check it received during the individualized assessment. Id.
The employee has seven days to give verbal or written notice of inaccuracy, rehabilitation evidence, or present other mitigating factors. San Francisco Police Code § 4904(h). If the employee produces the information above, the employer may not take any adverse action for a reasonable period, and the employer must reconsider its decision in light of the new information. Id.
Following the reconsideration period, the employer must notify the employee of its change in position or final adverse action. San Francisco Police Code § 4904(i).
State and Federal Preemption
There are some state and federal laws preempt the San Francisco Fair Chance Ordinance, and require background checks for certain positions. For example, applicants for jobs in the financial services and insurance industries must submit to a background check before being considered for a position.
Employers must retain records of employment, applicant forms, and other pertinent data and records for three years. San Francisco Police Code § 4910.
The San Francisco Fair Chance Ordinance contains an anti-retaliation provision. San Francisco Police Code § 4908. Employers cannot interfere with, restrain, or deny the exercise of any right protected under the Ordinance. Further, it is unlawful for an employer to refuse to hire an applicant, discharge, threaten to discharge, demote, suspend, or take an adverse action against an employee in retaliation for exercising their Fair Chance Ordinance rights. These rights include:
- The right to file a complaint or inform any person about any employer’s alleged violation of this Article;
- The right to notify any person of an employer’s suspected violation of the Ordinance;
- The right to cooperate with the OLSE or other persons in the investigation or prosecution of any alleged violation of the Ordinance;
- the right to oppose any policy, practice, or act that is unlawful under the Ordinance; or,
- The right to inform any person of his or her rights under the Ordinance.
The Fair Chance Ordinance defines an adverse action as to failing or refusing to hire, discharge, or not promote an individual, or to limit, segregate, or classify employees in a manner depriving anyone of employment opportunities. San Francisco Police Code § 4903. Under the Ordinance, taking adverse action against a person within 90 days of the exercise of a Fair Chance right creates a rebuttable presumption that the employer’s action was taken in retaliation. Id.
The OLSE is authorized to investigate violations and hold hearings. The Department can order relief, including penalties, which employers must pay to the City. San Francisco Police Code § 4909.
The San Francisco Fair Chance Ordinance contains a private right of action, allowing any applicant or employee whose rights were violated to bring a civil action in court. San Francisco Police Code § 4909(b). However, to initiate a civil action, an employee or applicant must first:
- File a complaint with OLSE;
- Wait 90 days after filing the complaint;
- Provide a 30-day written notice to the OLSE and the City Attorney’s Office of their intent to initiate a lawsuit; and,
- Wait 30 days for the City Attorney not to provide notice of intention to start a civil proceeding.
An employee or applicant who prevails in a civil action is entitled to recover:
- Back pay;
- Payment of benefits or pay unlawfully withheld;
- $500 per day to each employee or applicant for each day their Fair Chance rights were violated;
- Injunctive relief; and,
- Reasonable attorney fees and costs. San Francisco Police Code § 4909(b).
Employees and applicants have one year from the date of the violation to file a civil action. San Francisco Police Code § 4909(e).
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