San Francisco Family-Friendly Ordinance Goes into Effect January 1, 2014

San Francisco employees with caregiving responsibilities for a child, a family member with a serious health condition or a parent age 65 or older can now request a flexible or predictable working arrangement from their employers. Qualified employees may request a modification of the terms and conditions of employment as they relate to the number of hours the employee is required to work, where the employee is required to work, work assignments, or predictability in a work schedule.
An employer may reject the request without fear that the City of San Francisco will scrutinize the employer's reasoning. However, the City will punish the employer for failing to post the notice required by the ordinance, failing to respond to the employee's request in the manner required by the ordinance, or retaliating against any employee attempting to seek the benefits under the ordinance.
The ordinance as enacted seems to apply to businesses with 20 or more employees in San Francisco. However, an amendment is currently pending to subject anyone who regularly employs 20 or more employees "regardless of location" to the ordinance, entitling that employer's San Francisco-based employees to seek a flexible or predictable working arrangement.
Who is protected by the ordinance?
Any person qualifying as a caregiver who works within the geographic boundaries of San Francisco may seek rights under the ordinance. If a caregiver has worked for the employer for at least 6 months and works at least 8 hours per week on a regular basis, the employee can make a request for a flexible or predictable working arrangement to assist with caregiving. A caregiver is an employee who is a primary contributor to the ongoing care of:
a child under 18 years of age for whom the employee has assumed parental responsibility;
a spouse, domestic partner, child, parent, sibling, grandchild or grandparent who has a serious health condition; or
a parent age 65 or older.

Who is subject to the ordinance?
Any person who regularly employs 20 or more employees, regardless of whether they are full- or part-time employees, must comply with the ordinance. The definition of "Employer" has now been amended to include the words "regardless of location," so that any employer who has 20 or more employees located anywhere is required to comply with the ordinance as it pertains to those employees who have worked in San Francisco for 6 months and work more than 8 hours per week on a regular basis in San Francisco.
The 20 employee count includes the employer's agents, corporate officers or executives who directly, indirectly, or through an agent (including through the services of a temporary services or staffing agency) employ or exercise control over the wages, hours or working conditions of an employee.
Are union employees covered by the ordinance?
Yes, unless the requirements are expressly waived by the collective bargaining agreement in clear and unambiguous terms. A side letter to any current collective bargaining agreement waiving the provisions of the ordinance should be enough to exempt the parties.
What can the employee request?
The employee can request a change in the terms and conditions of employment so as to provide flexibility or scheduling predictability to assist with caregiving responsibilities. The ordinance suggests a number of options for the employee, including a modified work schedule, changes in start and/or end times for work, part-time employment, job sharing arrangements, working from home, telecommuting, a reduction or change in work duties, or part-year employment.
How does the employee make a request?
An employee must make a request in writing which specifies the arrangement being applied for, the date on which the request would become effective, the duration of the arrangement, and an explanation as to how the request is related to caregiving. If the employee makes an initial verbal request, the employer must direct the employee to the mandatory workplace poster explaining the ordinance and instruct the employee to prepare a written request. Though the employer can make this instruction verbally, it is best to provide that instruction in writing so as to create a record that the employer has followed the ordinance.
When can the employee make a request?
The employee can make a request twice every 12 months, unless the employee experiences a major life event, in which case the employee may make an additional request. A major life event is defined as the birth of an employee's child, the placement of a child through adoption or foster care, or an increase in an employee's caregiving duties for a family member with a serious health condition. An employee experiencing a major life event can make up to three requests within a 12 month period.
When must the employer respond?
The employer must first meet with the employee within 21 days of the request. Within 21 days of that meeting, the employer must respond to the employee's request in writing.
How can the employer respond?
Upon receipt of the request, the employer can require verification of caregiving responsibilities as a condition to considering the request.
If the employer decides to grant the request, the arrangement must be confirmed in writing.
If the employer denies the request, it must explain the denial in a written response that sets out a bona fide business reason for the denial, notifies the employee of the right to request reconsideration, and includes a copy of the ordinance language laying out the procedure to request reconsideration.
Bona fide business reasons for the denial may include, but are not limited to, the following:
An identifiable cost of the change requested, including cost of productivity loss, retraining, hiring, or transferring employees from different facilities;
The detrimental effect on the ability to meet customer or client demands;
An inability to organize work among other employees; or
Insufficient work to be performed during the time the employee proposes to work.

If an employer grants a predictable working arrangement but has insufficient work for the employee during that period, the ordinance does not require the employer to compensate the employee during the time of insufficient work. This provision seems to address the situation where an employee is generally allowed to start work one hour earlier, but is told in advance that because there is insufficient work available, the employee will not be allowed to start early on a particular day. In contrast, if the employee actually begins work at 8 AM rather than 9 AM as an accommodation, the employer cannot refuse to pay the employee if no customers appear during that time. Hourly employees are entitled to compensation so long as they appear for work.
Can the employee challenge the employer's bona fide reason?
No. Assuming the employer follows the proper procedure, the employee's only remedy is to request reconsideration from the employer. The employee has 30 days from the denial within which to submit a request for reconsideration in writing. The employer must arrange another meeting with the employee within 21 days of the request to discuss the issue. The employer must then inform the employee of its final decision in writing within 21 days after that meeting. If the request for reconsideration is denied, the employer's notice must explain in writing the bona fide business reason for the denial.
What if the employer or employee no longer likes the new arrangement?
Either an employer or an employee may revoke a flexible or predictable work arrangement on 14 days' written notice to the other party. If that occurs, the employee may submit a request for a different flexible or predictable working arrangement, and the employer must respond as listed above. Each time an employer revokes an arrangement, the employee is given the right to make an additional request even if two requests were already made within a 12 month period.
How must the employer inform employees of the requirements?
The employer must display the approved poster informing employees of their rights in a conspicuous place wherever employees work within San Francisco. Not only must the poster provide notice in English, Spanish and Chinese, it must also be provided in any language spoken by at least 5% of the employees at the location. The City has made a poster available in six languages.
How can the employer be subjected to liability?
So long as the proper procedures are followed, the employer cannot be subjected to liability for refusing to grant a request. An employer will be subjected to liability if:
It interferes with or restrains the attempt to exercise rights under the ordinance;
It threatens to discharge, demote, suspend, or take adverse employment action on the basis of caregiver status or in retaliation for exercising rights under the ordinance. Those rights include:
the right to request a flexible or predictable working arrangement,
the right to request reconsideration,
the right to file a complaint with the City alleging a violation,
the right to inform any person about the employer's violation,
the right to cooperate with the City in the investigation or prosecution of any alleged violation,
the right to oppose any policy, practice or act that is unlawful under the ordinance, or
the right to inform any person of the rights available under the ordinance.

Can the employee enforce the ordinance against the employer?
No. Only the San Francisco Office of Labor Standards Enforcement (referred to as "the Agency" in the ordinance) may enforce the ordinance. An employee has a right to report a suspected violation to the Agency, but only if the employee has first submitted a request for reconsideration to the employer. Given this language, it appears that the Agency can respond even if reconsideration request is still pending. The filing of a report by an employee does not create a right of appeal to the Agency. The Agency in its sole discretion may decide whether to investigate or pursue an alleged violation.
Can the Agency challenge the employer's bona fide reason?
No. The Agency's finding of a violation may not be based on the validity of the employer's bona fide business reason for denying an employee request. The Agency's review is limited to the employer's compliance with the procedural, posting and documentation requirements, as well as the validity of any claims of retaliation against employees who exercise their rights under the ordinance.
How does the Agency enforce the ordinance?
In 2014, the Agency is required to issue warnings and notices to correct before taking any formal steps against the employer. Beginning in 2015, the Agency can sanction the employer immediately. The Agency is empowered to issue an order for any appropriate relief to compel compliance with the statute.
If the employer is in violation of the statute, the Agency may impose an administrative penalty up to $50 to be paid to each employee whose rights were violated for each day that the violation occurred and continued.
The Agency may take any appropriate enforcement action to secure compliance, including initiating a civil action. To compensate the City for the cost of investigating and remedying the violation, the Agency can also order the employer to pay to the City a sum of not more than $50 for each day and each aggrieved employee.
The employer is to be given an opportunity to appeal the Agency's determination to a hearing officer. However, the rules for the employer appeal have not yet been created. If the employer fails to appeal, the Agency's determination shall be final.
If the employer files an appeal, the Agency's determination of a violation is considered prima facie evidence of the violation. This places the burden of proof on the employer to show by a preponderance of the evidence that the Agency's determination was incorrect. The hearing officer's decision shall constitute the City's final decision. The sole means of review of that decision is a petition for a writ of mandate with the San Francisco Superior Court.
If the City brings a civil action against the employer and prevails, each employee harmed shall be entitled to legal or equitable relief which may include reinstatement, back pay, payment of benefits withheld, and the payment of liquidated damages of $50 for each day the violation was permitted to continue. The City upon prevailing shall also be awarded reasonable attorney's fees and costs. There is no corresponding right for the employer to recover attorney's fees if it prevails.
Should you have any questions about the ordinance, feel free to contact Bill Bogdan at 415 397-2800 or [email protected]