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Employee Rights and Employer Obligations Under the San Francisco Family Friendly Workplace Ordinance

As of January 1, 2014, San Francisco employers with 20 or more employees (regardless of location) must comply with the The San Francisco Family Friendly Workplace Ordinance, San Francisco Administrative Code Chapter 12Z (the "FFWO"). The FFWO provides protection to and permits covered San Francisco employees to request a flexible or predictable work arrangement to assist with caregiving responsibilities for:

  • a child or children under the age of 18 for whom the employee has assumed parental responsibility,
  • a person or persons with a serious health condition[1] in a family relationship[2] with the employee, or
  • a parent (age 65 or older) of the employee.

For example, an employee could request a change in the number of hours worked, times worked, work location, work assignments or predictability of work schedule.

Covered Employees

For purposes of the FFWO, covered employees include those who:

  • are employed within the geographic boundaries of the City of San Francisco,
  • regularly work at least 8 hours per week, and
  • have been employed by the employer for 6 months or more.

Request Process

An employee may make 2 requests every 12 months. Additional requests may be made if the employee experiences a major life event, such as the birth of a child, placement with the employee of a child through adoption or foster care, or an increase in the employee’s care giving duties for a person with a serious health condition in a family relationship with the employee.

Employers may require employees to submit the request in writing and to specify the arrangement they are seeking, the start date and the duration of the requested arrangement, and to explain how the request is related to care giving.  Employers may also require verification of the employee’s care giving responsibilities.

Within 21 days of the employee’s request, an employer must meet with the employee to discuss the request. Within 21 days of that meeting, the employer must respond in writing to the employee’s request, unless the employee and employer agree in writing to extend this deadline.

Granted Requests and Revocation

If the employer grants the request, either the employer or the employee may revoke the arrangement upon 14 days’ notice.  If either party revokes the arrangement, the employee may submit a request for a different flexible or predictable working arrangement and the employer must respond to the new request within the timeframe described above.  (Each time an employer revokes an arrangement entered into under the FFWO, the employee may make another request in addition to the allowable number of requests per 12-month period described above.)

Denial of Requests

If the employer denies the request, the written denial must provide a "bona fide business reason" for the denial and must notify the employee of the right to ask for reconsideration.  The employer must also include with the denial a copy of FFWO Section 12Z.6, which describes the employee’s reconsideration rights.   The employee’s request for reconsideration must be made within 30 days after the employer’s decision.  The employer must meet with the employee within 21 days after receiving notice of the request for reconsideration and issue a final decision within 21 days after the meeting.  If the request for reconsideration is denied, the employer’s final decision must explain the bona fide business reasons for the denial.

Bona fide business reasons may include (without limitation): productivity loss; cost of retraining, rehiring or transferring employees; detrimental impact on ability to meet customer demand; inability to organize work among other employees or insufficient work during proposed schedule.

Anti-Retaliation and Protection of Caregiver Status

The ordinance includes an anti-retaliation provision and also prohibits taking adverse action against any employee on the basis of Caregiver status.

Records Retention

Employers must retain documentation required under the FFWO (including written requests and employer decisions) for a period of three years from the date of the request.  An employer who fails to maintain or retain such documentation will be presumed to have violated the FFWO, absent clear and convincing evidence to the contrary.

Penalties

The San Francisco Office of Labor Standards Enforcement (OLSE) may determine that violations of the FFWO’s procedural, posting or documentation requirements have occurred, or that an employee has been retaliated against for exercising rights under the FFWO or has been subjected to an adverse employment action on the basis of Caregiver status.  (Note that the OLSE may not base its finding of violation on the validity of the employer’s bona fide reason for denying an employee’s request.)  If the OLSE determines that a violation has occurred, it may order any appropriate relief and may impose an administrative penalty of up to $50 to be paid to each employee or person whose rights under the FFWO were violated for each day or portion of each day that the violation occurred or continued.  In 2014, the OLSE must first issue warnings and notices to correct before enforcing the penalty.  If the employer does not promptly comply after the OLSE issues a determination, the OLSE may take other enforcement action, such as initiating a civil action for relief, including but not limited to: reinstatement, back pay, payment of benefits or pay unlawfully withheld; interest; payment of an additional sum as liquidated damages in the amount of $50 to each employee whose FFWO rights were violated for each day the violation continued; injunctive relief; and attorneys’ fees and costs.

Other Information

Employers are required to post the official FFWO Notice.

The requirements under the FFWO can be waived in a collective bargaining agreement.

For more information please visit the SF Labor Standards Enforcement FFWO website.

Please note that this update is not intended to constitute legal advice. 

If you have questions regarding requirements of the San Francisco Family Friendly Workplace Ordinance, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen, LLP through our website, www.dpemploymentlaw.com, or by calling us at 415.924.9400.

 

[1] “Serious Health Condition” is broadly defined under the FFWO as an illness, injury, impairment, or physical or mental condition that involves either: (1) inpatient care in a hospital, hospice or residential health facility or (2) continuing treatment or continuing supervision by a health care provider.

[2] A “family relationship” under the FFWO is one in which the employee is related by blood, legal custody, marriage or domestic partnership, to another person as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent.

Legal Disclaimer

Legal Disclaimer and Notice:
These updates have been prepared by Daijogo & Pedersen, LLP for informational purposes only and are not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Information on this website should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.