Once again, San Francisco is at the forefront of enacting new
rights intended to protect workers. On October 1, San
Francisco's Board of Supervisors adopted the "San
Francisco Family Friendly Workplace Ordinance," which Mayor
Lee signed into law on October 9. The new ordinance, which is
effective January 1, 2014, aims to "reduc[e] family
flight" from San Francisco. Along with the State of Vermont,
which enacted similar legislation this past summer, the San
Francisco ordinance is the first "right to request" law
in the country.
Under the new San Francisco "right to request" Ordinance,
after six months or more of employment, an employee who works at
least eight hours per week on a regular basis has the right to
request a "Flexible" or "Predictable Working
Arrangement." The Ordinance applies to any employer who
regularly employs 20 or more employees. The law defines
"employee" as any person who is employed within the
geographic boundaries of the City and County of San Francisco.
"Employment" includes any work activity that would be
considered "employment" under the federal Fair Labor
Standards Act. 29 U.S.C. section 201 et. seq., and U.S. Department
of Labor Guidelines. "Employer" means any person or
company who regularly employs 20 or more people. The term
"employer" includes the City and County of San Francisco,
but it does not include the state or federal government or any
other local government entity.
Under the Ordinance, a San Francisco employee may make a request
for a modified work schedule in order to assist the employee with
caregiving responsibilities for (i) a child or children for whom
the employee has assumed parental responsibility, (ii) a person or
persons with a serious health condition in a family relationship
with the employee—spouse, domestic partner, parent, child,
sibling, grandparent, or grandchild, or (iii) a parent age 65 or
older of the employee. The request may include, for example, a
change in the number of hours or times the employee is required to
work, where the employee is required to work, work assignments, or
predictability in work schedule. Examples include a change in
start/end times, part-time schedules, telecommuting, job sharing,
and part-year schedules. Predictability in scheduling envisions
advance notice regarding scheduled work days/times to allow workers
to make caregiving arrangements for dependent family members.
The Ordinance contains detailed requirements for both employers and
requesting employees. Employers are required to post a notice of
rights under the Ordinance in English, Spanish, Chinese, and any
language spoken by at least five percent of the employees at the
workplace or job site as well as to maintain records regarding
compliance. Employees are required to make requests in writing and
provide an explanation regarding how the request is related to
caregiving as well as the effective date and requested duration of
the arrangement. The employer must consider each request, meet with
the employee within 21 days to discuss the requested arrangement,
and provide a decision in writing within 21 days of the meeting. A
denial must be in writing and set forth a "bona fide business
reason" in support. Bona fide business reasons for a denial
may include, among other things, "undue hardship" factors
such as the cost of the change (e.g., the cost of productivity
loss, retraining or hiring as a result, effect upon ability to meet
customer or client demands, or the effect upon the remainder of the
workforce). An employee must request reconsideration of a denial
within 30 days as a prerequisite to reporting an alleged
violation.
The Ordinance prohibits adverse employment actions based upon
caregiver status. In addition, the Ordinance makes it unlawful to
interfere with, restrain, deny the exercise of, or attempt to
exercise any rights granted under the Ordinance or to retaliate
against an employee for exercising those rights. The City's
Office of Labor Standards Enforcement ("OLSE") is charged
with administration and enforcement of the law, similar to
enforcement of other local labor laws (e.g., Health Care Security,
Minimum Wage, Paid Sick Leave). The OLSE may investigate possible
violations, order any appropriate temporary or interim relief, and
conduct a full investigation or hearing. The OLSE's review is
limited to an employer's adherence to procedural, posting, and
documentation requirements as well as the validity of employment
discrimination or retaliation claims. During 2014, if a violation
is found, only warnings and notices to correct can be issued.
Beginning in 2015, the OLSE may impose on a violating employer an
administrative penalty of up to $50 per day per employee for each
day or portion thereof that the violation occurred or
continued.
Supporters of the new Ordinance have expressed the belief that it
helps both employees and employers, pointing to studies showing how
flexible work arrangements reduce absenteeism, help recruitment and
retention, and increase productivity. Opponents focus on the
administrative burden and expense of compliance and express fears
that the law will deter businesses from remaining or choosing to
operate in San Francisco.
In some respects, the "arrangements" promoted by the
Ordinance are similar to the types of "reasonable
accommodations" employers must provide to disabled workers
under the Americans with Disabilities Act ("ADA") and the
Fair Employment and Housing Act ("FEHA"). However, the
obligations created by the Ordinance are considerably broader in at
least certain respects. First, the right to request a workplace
arrangement under the Ordinance applies to all employees working in
San Francisco, not only those who meet the statutory definition of
being "disabled" under the state and federal laws. In
addition, while employers are not obligated to modify essential job
functions as a reasonable accommodation under the ADA and the FEHA,
covered "arrangements" under the Ordinance may result in
changes to the terms and conditions of employment. Indeed, many of
the listed "arrangements"—including, most notably,
working from home, telecommuting, reduction of or change in work
duties, and part-year employment—might not qualify as
"reasonable" accommodations at all.
Significantly, the Ordinance gives covered employers flexibility in
determining whether to grant or deny a requested
"arrangement." For example, the Ordinance gives employers
the right to "require verification of care giving
responsibilities as part of the request," which presumably
gives employers the ability to deny requested arrangements when
verification is not forthcoming. In addition, and more importantly,
the Ordinance does not provide a limited list of "bona fide
business reasons" for denying a requested
"arrangement." Instead, the Ordinance provides only
examples of several "bona fide business reasons."
Employers should be free under the Ordinance to respond to requests
for work schedule changes based on their own specific and
legitimate business reasons.
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