The San Francisco Family Friendly Workplace Ordinance: What San Francisco Employers Need to Know
The City of San Francisco enacted the Family Friendly Workplace Ordinance (or “FFWO”) in October 2013, and the law took effect on January 1, 2014. To address an ambiguity regarding coverage, the law was amended on January 7, 2014, and the amendment became operative on February 14, 2014. The FFWO, as amended, is enforced by the San Francisco Office of Labor Standards Enforcement (“OLSE”) and: (1) provides employees who are caregivers or parents the right to request predictable and flexible working arrangements, and (2) prohibits employment discrimination based on the employee’s status as a caregiver or parent. To assist our San Francisco clients with their compliance efforts, we provide this outline of the basic elements of the law.
To whom does the FFWO apply?
The new law applies to an “Employer” who “regularly employs 20 or more Employees.” An “Employee” is defined in the ordinance as someone who is employed within the City of San Francisco. An “Employer” is one that has 20 Employees, regardless of location. As a result, if you have at least 20 employees, whether they work within or outside of San Francisco, you are an Employer subject to the FFWO. However, if you are a small employer who does not regularly employ at least 20 employees anywhere, then you can safely assume you are not subject to this law.
Assuming you are an FFWO Employer, your Employees may request a flexible or predictable working arrangement, provided they are “employed within the geographic boundaries of the City. . . ,” and have been employed by you for six months or more, and work a minimum of 8 hours per week on a regular basis.
What does the FFWO require?
The FFWO gives an Employee the right to request a predictable or flexible working arrangement, and gives an Employer the right to deny the request based on business reasons. There are very specific procedures and timeframes for the Employee’s request and the Employer’s response.
To initiate the process, the Employee must submit a written request to the Employer. This request must specify the proposed arrangement and its requested effective date and duration, and explain how the request is related to caregiving. A sample request form is provided under Resources in the OLSE website at http://sfgsa.org/index.aspx?page=6305, or you may elect to develop your own request form.
A request may include, but is not limited to, the following types of changes to proposed work arrangements:
- The number of hours the Employee is required to work;
- The times when the Employee is required to work;
- Where the Employee is required to work;
- Work assignments or reduction or change in work duties; or
- Predictability in a work schedule.
The purpose of the Employee’s request must be to assist with caregiving responsibilities for: (1) the Employee’s child under the age of 18; (2) a person with whom the Employee has a Family Relationship and who has a Serious Health Condition; or (3) the Employee’s parent who is age 65 or older. A Family Relationship means a relationship in which the Caregiver is related by blood, legal custody, marriage or domestic partnership, (as defined by San Francisco or California law), to another person as spouse, domestic partner, child, parent, sibling, grandchild or grandparent.
In responding to a request, the Employer must meet with the Employee within 21 days of the Employee’s request. Once this meeting is held, the Employer has 21 days to consider and respond to the Employee’s request. (An extension of time can be granted if the Employee agrees.) The Employer may grant or deny the request, but its response must be in writing. If the request is granted, the arrangement must be confirmed. If the request is denied, the Employer must explain the bona fide business reason for the denial, notify the employee of the right to request reconsideration and provide a copy of the FFWO, Section 12Z.6 (the portion of the Ordinance that describes the reconsideration process).
Bona fide business reasons for denying a request may include, but are not limited to:
- The identifiable cost of the change in a term or condition requested, including the cost of productivity loss, retraining or hiring or transferring employees;
- Detrimental effect on ability to meet customer or client demands;
- Inability to organize work among other employees;
- Insufficiency of work to be performed during the time the Employee proposes to work.
When the Employee’s request is denied, the Employee may, within 30 days of the decision, submit a written request for reconsideration to the Employer. In response, the Employer must arrange a meeting within 21 days thereafter to discuss the reconsideration request. Once the reconsideration meeting is held, the Employer has 21 days to inform the Employee, in writing, of its final decision. If the request for reconsideration is denied, the Employer’s notice must include an explanation of the bona fide business reasons for the denial.
An Employee may make a request for a predictable or flexible working arrangement twice every 12 months. However, if the Employee experiences a Major Life Event, the Employee may make, and the Employer must consider, an additional request. A Major Life event means the birth of an Employee’s child, placement of a child through adoption or foster care, or an increase in the Employee’s caregiving duties due to a Serious Health Condition of a person in a family relationship with the Employee.
A flexible or predictable working arrangement may be revoked by the Employee or Employer with 14 days written notice to the other party. In the event of a revocation, the Employee may request a different flexible or predictable working arrangement, and the procedures described above, must be followed. For each Employer revocation, the Employee is entitled to one additional request beyond the allowable number of requests per year.
The FFWO also provides legal protection to Employees by making it unlawful for an Employer to take adverse employment action against any person on the basis of his or her Caregiver status, or in retaliation for exercising rights protected by the FFWO. Additionally, the FFWO prohibits interference with any rights protected by the FFWO. This means, for example, that an Employer may not penalize an Employee for requesting a flexible or predictable working arrangement, or requesting reconsideration of a denied request, or for filing a complaint for an alleged violation of the FFWO.
Employers must post the FFWO Notice informing Employees of their FFWO rights, available on the OLSE website: http://sfgsa.org/modules/showdocument.aspx?documentid=11256. Employers must also retain documentation required by the FFWO for 3 years from the date of the request, and allow the OLSE access to such records, with appropriate notice and at a mutually agreeable time.
How is the FFWO Enforced?
Significantly, while the OLSE is authorized to investigate potential violations and enforce the FFWO, the finding of a violation may not be based on the validity of the Employer’s bona fide business reason for denying the employee’s request. Rather, the OLSE is limited, in its review, to the issue of whether the Employer complied with the FFWO procedural, posting and documentation requirements, and the validity of claims under Section 12Z.7 (the nondiscrimination, no retaliation section). In addition, during the first 12 months of operation, the OLSE is authorized to issue only warnings and notices to correct. Thereafter, the agency may impose an administrative penalty of up to $50 for each Employee whose rights were violated, for each day that a violation occurred or continued, as well as other appropriate relief.
As a reminder, most San Francisco employers are also required to comply with the City’s minimum wage ordinance ($10.74 in 2014), the paid sick leave ordinance and the health care security ordinance. The Fair Chance Ordinance, which regulates the use of an individual’s criminal history in hiring and employment, will be the topic of an upcoming article. This new San Francisco ordinance was signed into law on February 14, 2014, and will become effective on August 13, 2014. For further information or assistance in complying with these San Francisco ordinances, please contact the Sacks, Ricketts & Case employment attorneys below.