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.

Click here to read San Francisco Employee Protections Part I.

Click here to read San Francisco Employee Protections Part III.

Minimum Wage Ordinance

Passed in 2003, San Francisco became the first locality in the nation with a minimum wage ordinance.  The current minimum wage is $15.59 per hour.  The City mandates an annual increase to the minimum wage based on the Consumer Price Index.  Nearly every worker is covered by the minimum wage ordinance, except for a small number of government support employees, who are subject to a minimum wage rate of $13.79 per hour.

Covered Employees

The Minimum Wage ordinance covers nearly all employees who work at least two hours per week in San Francisco.  San Francisco Administrative Code § 12R.3.  It applies to full and part time employees.  The Ordinance covers undocumented workers.  The minimum wage ordinance does not cover employees who are the parent, spouse, or child of the employer.

Covered Employers

The San Francisco minimum wage ordinance applies to any employer that employs someone for two or more hours per week within San Francisco.  San Francisco Administrative Code § 12R.3. Covered employers include any person, association, organization, partnership, business trust, limited liability company, or corporation, as well as corporate officers and executives.

What are Wages Under the San Francisco Minimum Wage Ordinance?

The San Francisco Minimum Wage ordinance defines wages as compensation in the form of salary, hourly pay, piece rate, commissions, and non-discretionary performance bonuses.

Where an employee receives base and commission pay during a period is mathematically less than San Francisco’s required minimum wage amount, the employer must compensate for the difference.

The San Francisco minimum wage ordinance does not consider tips to be wages.

Employer Obligations Under the San Francisco Minimum Wage Ordinance

San Francisco employers must pay employees at least minimum wage.

Employers must display minimum wage and employee rights posters at job sites.  The notices must be in English, Spanish, Chinese, and any other language spoken by at least 5% of the employees at the job site.

At the time of hiring, Employers must provide each employee, in writing, the employer’s name, address, and telephone number.

Record Retention

Employers must retain payroll records for at least four years.  San Francisco Administrative Code § 12R.5(c).

Anti-Retaliation Provision

The San Francisco Minimum Wage Ordinance includes an anti-retaliation provision.  San Francisco Administrative Code § 12R.6.  Under the provision, employers cannot retaliate against employees who assert their minimum wage ordinance rights, including receiving San Francisco’s minimum wage.  These rights include:

  • The right to file a complaint;
  • The right to inform any person about noncompliance with the Ordinance;
  • The right to notify any person of their rights under this Ordinance; and,
  • The right to assist any person in asserting their rights under this Ordinance.

Where an employer takes adverse action against an employee within 90 days of their exercising their rights protected under the Minimum Wage Ordinance, a rebuttable presumption of retaliation arises.

No Waiver of Minimum Wage

Employers cannot force employees to waive their right to a minimum wage.  However, employees subject to a collective bargaining agreement can waive minimum wage requirements so long as the CBA contains an explicit waiver that is clear and unambiguous.  San Francisco Administrative Code § 12R.8.

Enforcement

Employees whose Minimum Wage ordinance rights have been violated may either report the violation to San Francisco’s Office of Labor Standards Enforcement (“OLSE”).

After an employee reports a violation, the OLSE is empowered to investigate the employer and conduct administrative hearings to resolve claims. San Francisco Administrative Code § 12R.7.

The employee can also elect to file a lawsuit in court against an employer.  San Francisco Administrative Code § 12R.7(d).

Remedies

An aggrieved employee is entitled to several remedies, including:

  • Reinstatement;
  • Back wages unlawfully withheld;
  • $50 per day penalty for each day the violation occurred or continues;
  • Injunctive relief; and,
  • Reasonable attorney fees and court costs.  San Francisco Administrative Code § 12R.7(d).

Please note that the $50 per day penalty is not available to City and County of San Francisco employees.  San Francisco Administrative Code § 12R.7(g).

Penalty Schedule

The OLSE is empowered to assess penalties against employers who violate the Minimum Wage Ordinance.  San Francisco Administrative Code § 12R.16.  The penalties are assessed as follows:

  • $50 to each employee or person whose rights were violated for each day the violation occurred.  San Francisco Administrative Code § 12R.7(c);
  • $50 to City for each day and for each employee or person as to whom the violation occurred or continued.  San Francisco Administrative Code § 12R.7(c);
  • $500 penalty for failure to maintain payroll records or to retain them for four years.  San Francisco Administrative Code § 12R.16;
  • $500 penalty for failure to allow OLSE to inspect payroll records;
  • $1,000 per aggrieved employee penalty for retaliation for exercising rights under the Ordinance.  San Francisco Administrative Code § 12R.16; and,
  • $500 penalty for failure to post notice of minimum wage, provide notice of investigation to employees, post notice of violation to the public, and provide employer’s name, address, and number in writing.  San Francisco Administrative Code § 12R.16.

The law cumulatively increases all of the penalties by 50% for each subsequent violation of the same provision by the same employer or person three years.  San Francisco Administrative Code § 12R.16.  The maximum penalty amount that OLSE may impose upon an employer in a calendar year is $5,000, but $10,000 where a retaliation citation has been issued.  Id. OLSE can even assess enforcement costs against an employer, including attorney fees.  Id.  But, the costs cannot exceed $5,000 per year.  Id.

San Francisco Paid Sick Leave Ordinance

In 2006, San Francisco voters enacted the Paid Sick Leave Ordinance, which made San Francisco the first city in the nation with such a law. The San Francisco Paid Sick Leave Ordinance obligates employers to provide paid sick leave to all employers performing working in San Francisco.  Under the Ordinance, employees earn one hour of paid sick leave for every thirty hours worked.  Employers with ten or more employees may cap an employee’s sick leave time balance at 72 hours, while employers with fewer than ten employees may institute a sick leave balance cap of 40 hours.

Covered Employees

The Paid Sick Leave Ordinance covers anyone employed within San Francisco, including part-time and temporary workers.  San Francisco Administrative Code § 12W.2.  The Ordinance also includes employees living in San Francisco that work from home.  OLSE Rule 6.1.  These employees must work 56 or more hours of work within San Francisco each year to qualify for coverage.  Id.

Traveling employees that work outside of San Francisco, but travel through the city, are covered for all hours spent working in the city, provided they stop within and do not simply pass through.  OLSE Rule 6.2.  A typical example consists of delivery drivers who pick up and drop off in San Francisco.  As with employees working from home, these workers must perform 56 or more hours of work within San Francisco each year to qualify for coverage.  Id.

Covered Employers

The Paid Sick Leave Ordinance covers any employer that employs someone for two or more hours per week within San Francisco.  San Francisco Administrative Code § 12W.2.  Covered employers include people, associations, organizations, partnerships business trusts, limited liability companies, corporations, and corporate officers and executives.  Id.  

Hires made through agents or staffing agents are also included.  Id.

Paid Sick Leave Defined

Paid sick leave is characterized exactly as in California Labor Code § 233(b)(4), which means that an employee may use paid sick leave when ill or injured or receiving medical care, treatment, or diagnosis. San Francisco Administrative Code § 12W.4.  Paid sick leave also includes time off spent providing care or assistance to other persons with illness, injury, medical condition, need for diagnosis, preventative care, care, treatment, or any other medical reason.  Id.

Employees are permitted to use their paid sick leave to care for their children, parents, legal guardians or wards, siblings, grandparents, grandchildren, spouses, registered domestic partners, or a designated person of the employee’s selection.  San Francisco Administrative Code § 12W.4.   

Paid sick leave also includes time taken to manage domestic violence, sexual assault, or stalking suffered by an employee.  San Francisco Administrative Code § 12W.4.   

An employee can use their paid sick leave to donate an organ or bone marrow.  San Francisco Administrative Code § 12W.4.

Under the Paid Sick Leave Ordinance, an employer cannot require an employee exercising paid sick leave rights to locate a replacement for coverage during the employee’s absence.  San Francisco Administrative Code § 12W.4.

Employer Verification for Paid Sick Leave Use

An employer may only take “reasonable measures” in verifying an employee’s use of paid sick leave.  San Francisco Administrative Code § 12W.4(h).  An employer cannot require an employee to disclose more information than is necessary for the employer to determine whether the employee’s absence is proper. OLSE Rule 2.1.

For example, after an employee requests one week of paid sick leave, the employer asks for documentation.  The employee provides a note from her general doctor, which states, “The employee will be unavailable for work for one week due to a medical operation.”  The note is legally sufficient, and the employer may not request additional detail, such as to the type or purpose of the operation.

Under the San Francisco Paid Sick Leave Ordinance, employers cannot require employees to provide medical notes or documentation for paid sick leave use of three or fewer consecutive work days.  OLSE Rule 2.3.  However, employers can request such items where a demonstrable pattern or clear instance of abuse exists.  OLSE Rule 2.4.  Additionally, employers can request a medical note or documentation where the employee is utilizing paid sick leave for an appointment.  OLSE Rule 2.5.

Employer Reasonable Notice Requirement

Employers may require reasonable notice of paid sick leave absences.  San Francisco Administrative Code § 12W.4(g). Generally, requiring at least two hours’ notice before the start of a shift is reasonable.  OLSE Rule 1.3.

Paid Sick Leave Accrual

Under San Francisco’s Paid Sick Leave Ordinance, employees earn one hour of paid sick leave for every 30 hours worked.  Employees become entitled to utilize their paid sick leave time beginning on the 90thday of employment, and immediately as it becomes available afterward.  San Francisco Administrative Code § 12W.4(d).

Employers with ten or more employees may cap an employee’s sick leave time balance at 72 hours, while employers with fewer than ten employees may institute a sick leave balance cap of 40 hours.

Paid sick leave time balances carry over year-to-year. However, employers cannot cash out unused paid sick leave time.  San Francisco Administrative Code § 12W.3(g).

Employers are permitted to make a lump sum payment of sick leave available at the beginning of the calendar year.  This is called an upfront allocation. 

Where an employee leaves and comes back within one year, the previously accrued and saved paid sick leave shall be reinstated.  San Francisco Administrative Code § 12W.3(g).

Waiver

Employers may not force waiver of the right to paid sick leave.  However, employees covered by a collective bargaining agreement may waive their rights under the Ordinance.  San Francisco Administrative Code § 12W.9.

Employers Required to Inform Employees About Paid Sick Leave Rights

Employers must post an official OLSE paid sick leave notice at job sites. San Francisco Administrative Code § 12W.5.  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.

Record Retention

Employers must retain records documenting the hours worked by employees and paid sick leave taken by employees for four years.  San Francisco Administrative Code § 12W.6.

Anti-Retaliation

The San Francisco Paid Sick Leave Ordinance includes an anti-retaliation provision.  San Francisco Administrative Code § 12W.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:

  • Use paid sick leave;
  • File a complaint;
  • Inform any person about the employer’s violation;
  • Cooperate with OLSE in the investigation of violations; and,
  • Inform any person of their rights.  San Francisco Administrative Code § 12W.7.

The provision contains a 90-day rebuttable presumption of retaliation for any employer adverse action against an employee.  Id.

Enforcement

The OLSE is authorized to investigate violations, hold hearings, and order appropriate relief.  San Francisco Administrative Code § 12W.8.

The Paid Sick Leave Ordinance includes a private right of action. San Francisco Administrative Code § 12W.8(c).  Aggrieved employees may file a lawsuit in court against an employer.  Id. 

Remedies

An employee whose Paid Sick Leave Ordinance rights are violated may be entitled to:

  • Reinstatement;
  • Back pay;
  • Payment of any sick leave unlawfully withheld;
  • $50 per day penalty for each day the violation occurred or continues;
  • The greater of either treble damages of unlawfully withheld sick leave or $250; and,
  • Attorney fees and court costs.  San Francisco Administrative Code § 12W.8(c).

San Francisco Commuter Benefits Ordinance

The San Francisco Commuter Benefits Ordinance seeks to combat greenhouse gas emissions by mandating employers provide a commuter benefits program that supports and encourages employees to carpool, bike, or take transit to work.  If you work in San Francisco, the Commuter Benefits Ordinance may cover your employer.

Covered Employees

The Commuter Benefits Ordinance applies to any person qualifying as an employee entitled to minimum wage or who has performed an average of at least ten hours of compensated work per week in San Francisco within the previous calendar month.  San Francisco Environment Code § 427.

Covered Employers

The Ordinance covers employers located in San Francisco and employs more than twenty employees nationwide.  San Francisco Environment Code § 427.

Commuter Benefits Program

Covered employers must offer one of the following transportation-related benefits to employees:

  1. Pre-Tax Benefit: A Monthly pre-tax deduction, up to $265/month, to pay for transit or vanpool expenses;
  2. Employer-Paid Benefits: A monthly subsidy for transit or vanpool expenses equivalent to the price of the SF Muni “A” Pass;
  3. Employer-Provided Transportation: A company-funded bus or van service to and from the workplace; or,
  4. Any combination of the above.  San Francisco Environment Code § 427.

Enforcement

The San Francisco Department of Environment investigates violations of the Commuter Benefits Program.  Despite not containing a private right of action, the City Attorney may bring a civil action to enforce the Ordinance.  San Francisco Environment Code § 427. 

Click here to read San Francisco Employee Protections Part III.