San Francisco voters recently approved a ballot measure mandating that employers provide paid sick leave to employees, including part-time and temporary workers, who are employed within the city's geographic limits. The passage of Proposition F, the "Sick Leave Ordinance," makes San Francisco the first city in the United States to require private-sector employers to provide paid sick leave for employees. The measure takes effect on February 5, 2007.
Under the Ordinance, employees earn one hour of paid sick leave for every 30 hours worked. Employees begin to accrue leave after 90 days of employment. The maximum paid leave entitlement is 72 hours for "large" employers, defined as having ten or more employees, and 40 hours for "small" employers with fewer employees. The Ordinance provides that employees may carry over unused accrued leave time from year to year, up to the maximum limits. Employers are not required to pay out any unused accrued sick leave to employees upon their separation from employment.
The Ordinance provides that employers may require "reasonable notification" of an absence from work for which paid sick leave is or will be used. However, employers "may only take reasonable measures" to verify or document that the employee's use of paid leave is lawful. The Ordinance does not offer any guidance as to what "reasonable measures" may be taken.
Proposition F expands sick leave requirements under current California law. Labor Code section 233 now requires that if employers offer sick leave (it is not mandatory under state law), they must permit employees to use up to half the leave they would be entitled to accrue in a year to attend to the illness of a child, spouse or domestic partner. By contrast, Proposition F requires that employers allow employees to use any or all of their accrued paid sick leave to care for an ill child, parent, sibling, grandchild, grandparent, spouse or any "designated person," which need not be a spouse or domestic partner.
Proposition F also imposes notice and record-keeping requirements. With respect to notice, the Ordinance requires that the San Francisco Office of Labor Standards Enforcement make available to employers a written notice of employee rights, translated in English, Spanish, and Chinese. Employers must post the notice in a conspicuous location at each work site, and it must be translated into the above languages plus any other language spoken by at least five percent of the employees at the workplace or job site. With respect to record-keeping, employers must maintain records documenting paid sick leave and "hours worked by employees" for a period of four years. The Ordinance does not provide any exceptions or guidance for tracking the hours worked by exempt employees for purposes of the Ordinance. If a dispute arises concerning entitlement to paid leave under the Ordinance, and if the employer fails to maintain appropriate records, that failure creates a presumption of a violation unless "clear and convincing evidence" demonstrates otherwise.
The Ordinance prohibits an employer from retaliating against an employee for exercising rights under the Ordinance. Any adverse action taken within 90 days of an employee's exercise of a right under the Ordinance creates a rebuttable presumption of retaliation by the employer. Notably, the Ordinance makes it unlawful for an employer to use an "absence control" policy to count paid sick leave taken under the Ordinance as an absence that may result in discipline. San Francisco employers should review their attendance policies to ensure they do not run afoul of this Ordinance.
Proposition F includes a number of administrative and civil enforcement provisions. The San Francisco Office of Labor Standards Enforcement has authority to implement rules or guidelines under the Ordinance. This city agency also may investigate alleged violations, hold evidentiary hearings, and order relief, including back pay and penalties. The Ordinance also broadly authorizes civil actions by the San Francisco City Attorney, "any person aggrieved by a violation," and "any person or entity acting on behalf of the public as provided for under applicable law." The prevailing party may recover all "legal or equitable relief as may be appropriate to remedy the violation," including reinstatement, back pay, payment of any sick leave unlawfully withheld, liquidated damages, injunctive relief, attorneys' fees and costs.
Finally, the provisions of the Ordinance will not apply to union-represented employees covered by a collective bargaining agreement only where such requirements are expressly waived in the agreement in "clear and unambiguous" terms.
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