Amendments to California's Healthy Workplaces, Healthy Families Act

On July 13, 2015, Governor Brown signed AB 304 passed by the California legislature, which amended The Healthy Workplaces, Healthy Families Act (commonly referred to as California’s paid sick leave law). The California Department of Industrial Relations has posted on its website that it is reviewing the changes and will post an update soon.  The amendments take immediate effect, and include the following changes (among others):

  • Eligibility: An employee must work in California for the same employer for 30 or more days within a year from the commencement of employment in order to be entitled to paid sick days under the Act.
  • Alternate Accrual Methods Permitted: An employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.  An employer may satisfy the accrual requirements of the Act by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.  Note: This alternate accrual method does not appear to relieve an employer of the obligation to carry over unused accrued paid sick leave.
  • When No Accrual or Carryover is Required:  No accrual or carry over is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. The term “full amount of leave” means three days or 24 hours.
  • No Additional Sick Days are Required to be Provided Under the Act Depending on the Terms of the Employer’s Prior Policy:  The law still states that an employer is  not required to provide additional paid sick days if the employer has a paid leave policy or paid time off policy that satisfies the accrual, carry over and use requirements of the Act, regardless of when the policy was implemented or modified. In addition, under the new amendments, if an employer provided paid sick leave or paid time off to a class of employees before January 1, 2015, pursuant to a sick leave policy or paid time off policy that used an accrual method different than providing one hour per 30 hours worked, the employer doesn’t have to provide additional sick days under the Act, if the policy provides for accrual on a regular basis as follows: any employee (including one hired after January 1, 2015) has no less than one day or eight hours of accrued sick leave or paid time off within three months of employment of each calendar year, or each 12-month period, and the employee is eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment. If an employer modifies the accrual method used in the policy it had in place prior to January 1, 2015, the employer must comply with any accrual method set forth in the Act or provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period. Of course, the paid leave provided under the employer’s policy must be available for the same purposes and under the same conditions as paid sick leave under the Act.
  • Unlimited Time Off: If an employer provides unlimited paid sick leave or unlimited paid time off to an employee, the employer may satisfy the wage statement reporting requirements under the Act by indicating on the employee’s paystub (or other wage notice) that the amount of paid sick leave available is “unlimited.”
  • Calculation of Paid Sick Leave: For nonexempt employees, employers may use either of the following methods: (1) calculate paid sick leave in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek, or (2) calculate paid sick leave by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.  Paid sick leave for exempt employees must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.
  • Reinstatement: An employer is not required to reinstate accrued paid time off to a re-hired employee that was paid out at the time of termination, resignation, or separation of employment.

For the full text of the current law, please click here.

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

If you have questions regarding compliance with the California Healthy Workplaces, Healthy Families Act or other employment laws, 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.

California's Healthy Workplaces, Healthy Families Act

On September 10, 2014, Governor Brown signed the Healthy Workplaces, Healthy Families of Act of 2014 (the “Act”) requiring all employers, regardless of size, to allow covered employees to accrue paid sick days beginning July 1, 2015 at the rate of 1 hour for every 30 hours worked.

 

Covered Employees

All employees who, on or after July 1, 2015, work in California for 30 or more days within a year from the commencement of employment are entitled to accrue paid sick days.

The following employees are not covered by the Act:  (i) employees covered by a collective bargaining agreement that provides employees with paid sick days, paid leave or paid time off among other specific provisions; (ii) employees in the construction industry covered by a collective bargaining agreement that includes certain provisions and was either (a) entered into before January 1, 2015 or (b) expressly waives the terms of the Act; (iii) providers of in-home supportive services; and (iv) flight deck or cabin crew members employed by an air carrier under the Railway Labor Act, provided they receive at least 1 hour of compensated time off for every 30 hours worked.

 

Permissible Purposes

Paid sick days may be used:

  • for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member; or
  • for certain purposes by an employee who is a victim of domestic violence, sexual assault, or stalking.

A “family member” for purposes of the Act is any of the following:

  • a biological, adopted, or foster child, stepchild, legal ward, or child to whom the employee stands in loco parentis;
  • a biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child;
  • a spouse;
  • a registered domestic partner;
  • a grandparent;
  • a grandchild; or
  • a sibling.

 

Accrual

Employees accrue paid sick leave at a rate of 1 hour for every 30 hours worked. Accrual begins at commencement of employment or July 1, 2015, whichever is later.

 

Accrual Cap

Employers may cap accrual at 48 hours or 6 days.

 

Usage

Employees may use accrued paid sick days beginning on the 90th day of employment. Employers can limit annual paid sick day usage to 24 hours or 3 days. Employers may set a “reasonable minimum” increment, not to exceed to 2 hours, for use of paid sick leave.

 

Notice to Employer

Reasonable advance notice is required for foreseeable leave. For unforeseeable leave, notice must be provided as soon as practicable. Notice may be oral or written.

 

Carry Over Required

Employers must permit the carryover of accrued, unused paid sick leave from year to year.

 

Frontloading Permitted

No accrual or carryover is required if the full amount of leave (24 hours or 3 days) is provided at the beginning of each year.

 

Existing PTO or Paid Leave Policies

Employers are not required to provide additional paid sick days if the existing paid leave policy or paid time off policy provides paid leave for the same purposes and under the same conditions as specified in the Act and the policy either:

  • satisfies the Act’s accrual, carry over, and use requirements; or
  • provides no less than 24 hours or 3 days of paid sick leave, or equivalent paid leave or paid time off, for employee use for each year of employment or calendar year or 12-month basis.

 

Payout Is Not Required Upon Separation

Employers are not required to provide compensation for accrued, unused paid sick days upon separation from employment.

 

Reinstatement Required Within One Year

If an employee is rehired by an employer within one year from the date of separation, all previously accrued and unused paid sick days must be reinstated. The employee is entitled to use the reinstated paid sick days and to accrue additional paid sick days upon rehire.

 

Rate of Pay

The rate of pay is the employee’s hourly wage. If the employee in the 90 days of employment before taking accrued sick leave had different hourly rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay is calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

 

Timing of Payment

Employers must provide payment for sick leave taken no later than the payday for the next regular payroll period after the sick leave was taken.

 

Notice and Posting Requirements

Pay Date Notice.  Employers must provide employees with a written notice of the amount of available paid sick leave or paid time off. The notice may be included on the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages.

Poster.  The California Labor Commissioner’s Division of Labor Standards Enforcement (DLSE) has issued a poster that must be displayed in a conspicuous place in each workplace of the employer by January 1, 2015. The poster may be found here:  Paid Sick Leave Poster

Wage Theft Prevention Act Notice. As of January 1, 2015, the notice required under the Wage Theft Prevention Act (Labor Code Section 2810.5) must include a statement that an employee: (i) may accrue and use sick leave; (ii) has a right to request and use accrued paid sick leave; (iii) may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and (iv) has the right to file a complaint against an employer who retaliates. The revised Wage Theft Prevention Act Notice can be found here: Revised Wage Theft Prevention Act Notice

In addition to providing the revised Wage Theft Prevention Act Notice at the time of hiring, employers must also notify existing employees in writing of any changes to the notice within 7 calendar days after the time of the change, unless:

  • All changes are reflected on a timely wage statement furnished in accordance with Labor Code 226; or
  • Notice of all changes is provided in another writing required by law within 7 days of the changes.

 

Retaliation Prohibited

Employers cannot retaliate against (i.e., discharge, threaten to discharge, demote, suspend, or otherwise discriminate) an employee for:

  • using accrued sick days
  • attempting to exercise the right to use sick days
  • filing a complaint or alleging a violation of the Act
  • cooperating in an investigation or prosecution of an alleged violation of the Act, or
  • opposing any policy or practice prohibited by the Act

There will be a rebuttable presumption of unlawful retaliation if an employer retaliates against an employee within 30 days of any of the following:

  • An employee’s filing a complaint with the Labor Commissioner or alleging a violation of the Act.
  • Cooperation of an employee with an investigation or prosecution of an alleged violation.
  • Opposition by the employee to a policy, practice or act that is prohibited by the Act.

 

Record Retention

Employers must keep for at least 3 years records documenting the hours worked and paid sick days accrued and used by the employee. If an employer does not maintain adequate records, it will be presumed that the employee is entitled to the maximum number of hours accruable under the Act, unless the employer can show otherwise by clear and convincing evidence.

 

Enforcement and Penalties

The Labor Commissioner will conduct hearings to determine whether a violation occurred and may order relief, including: reinstatement, backpay, payment of sick days unlawfully withheld, and an administrative penalty to an employee whose rights were violated. In addition, the Labor Commissioner or Attorney General may bring a civil action and upon prevailing may collect relief, including:  reinstatement, injunctive relief, backpay, payment of sick days unlawfully withheld, liquidated damages, and reasonable attorney’s fees and costs.

Specific Monetary Penalties:

  • Administrative Penalty:
    • For paid sick days unlawfully withheld = dollar amount of paid sick days withheld x 3, or $250, whichever is greater, but not to exceed an aggregate penalty of $4,000
    • For other harm to the employee = $50 for each day or portion thereof that the violation occurred or continued, not to exceed an aggregate penalty of $4,000
  • Liquidated Damages (not to exceed an aggregate penalty of $4,000):
    • $50 to each employee whose rights were violated for each day or portion thereof that the violation occurred or continued
    • The dollar amount of any unlawfully withheld paid sick days to an employee x 3, or $250, whichever amount is greater
  • Willful Posting Violation:  up to $100 per offense.
  • Penalty to State:  The Labor Commissioner may order the employer to pay the state in compensation for investigating and remedying a violation up to $50 for each day or portion of a day a violation occurs or continues for each employee whose rights were violated.

No penalties or liquidated damages will be assessed for isolated and unintentional payroll errors or written notice clerical errors or inadvertent mistakes regarding the accrual or available use of paid sick leave.

 

No Preemption

The Act establishes minimum requirements for paid sick days and does not preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provides for greater accrual or use by employees of sick days, or that extends other protections to an employee.

 

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

If you have questions regarding compliance with the California Healthy Workplaces, Healthy Families Act or other employment laws, 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.

What Employers Need to Know About the San Francisco Fair Chance Ordinance

The San Francisco Fair Chance Ordinance (the “Ordinance”) went in to effect on August 13, 2014.  The Ordinance limits the use of criminal history information by private employers in San Francisco and requires them to follow certain procedures and restrictions when inquiring about and using conviction history information.

 

Coverage

The Ordinance applies to job positions physically located in San Francisco (in whole or in substantial part) for employers located in or doing business in San Francisco with 20 or more employees. For purposes of counting the number of employees, employers must count all employees (including owners and management and supervisorial employees) worldwide.   (Please note that the San Francisco Office of Labor Standards Enforcement (the “OLSE”) interprets “substantial part” as working an average of 8 hours per week in San Francisco.  Therefore, an employee working at least 8 hours a week in San Francisco, including under a telecommuting arrangement, would be in a covered position under the Ordinance, provided that the employer employed at least 20 people worldwide.)

If there is a conflict between the Ordinance and state or federal law, such state and/or federal law requirements will supersede the Ordinance’s requirements.  For example, if federal or state law requires a criminal background check for a particular position that conflicts with the Ordinance, then the Ordinance (including the notice and posting requirements described below) does not apply to that particular position and its applicants.

 

Employment Applications (Banning the Box)

Employers cannot ask about or require applicants to disclose on an employment application information regarding convictions[1], unresolved arrests[2], or any matter listed under “Other Prohibited Actions” below.

 

Other Prohibited Actions

Employers are not ever permitted to ask about, require disclosure of, or base an adverse action on:

  • an arrest not leading to a conviction, other than unresolved arrests;
  • participation in or completion of a diversion or a deferral of judgment program
  • a conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative;
  • a conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
  • a conviction that is more than 7 years old (the date of conviction being the date of sentencing); or
  • a criminal offense other than a felony or misdemeanor, such as an infraction.

 

Permissible Inquiries and Timing

Employers are permitted to ask applicants about convictions or unresolved arrests either after the first live interview (via telephone, videoconferencing, other technology, or in person) or after a conditional offer of employment.

 

Notice and Posting Requirements

Employment Advertisements: Any employment advertisement or solicitation that is reasonably likely to reach persons who are reasonably likely to seek employment in San Francisco (including online job postings) must state that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the Ordinance.  According to the OLSE, the following statement would satisfy this requirement: “Pursuant to the San Francisco Fair Chance Ordinance, we will consider for employment qualified applicants with arrest and conviction records.”

Before Any Conviction History Inquiry or Background Check: Prior to any conviction history inquiry (including a background check), employers must provide a copy of the Fair Chance Ordinance Notice published by the OLSE (described below) to the applicant/employee.

Fair Chance Ordinance Notice Posting: All employers must post this notice in every workplace, job site, or other location in San Francisco under the employer’s control that is frequently visited by employees or applicants.  Employers may comply with this requirement by posting the notice in the employee break room or on a company notice board.   Employees and applicants must be able to readily access this notice. In addition, employers must send a copy of the notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agreement or understanding that is applicable to employees in San Francisco.

The Fair Chance Ordinance Notice is available here on the OLSE website.

 

Making an Employment Decision and Individualized Assessments

The Ordinance requires employers to conduct an individualized assessment before making an employment decision based on a person’s conviction history. When conducting the individualized assessment, the employer is only allowed to consider directly-related convictions or unresolved arrests, meaning the conduct for which the individual was convicted, or which is the subject of the unresolved arrest, has a direct and specific negative bearing on the individual's ability to do the job.  The employer must consider whether the employment position offers the opportunity for the same or similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted or that is the subject of an unresolved arrest will recur in the employment position.

In addition, the employer must consider:

  • the time that has elapsed since the conviction or unresolved arrest;
  • evidence of inaccuracies in the applicant's conviction history;
  • evidence of rehabilitation and other mitigating factors, such as:
    • a person’s satisfactory compliance with all terms and conditions of parole and/or probation (however, inability to pay fines, fees, and restitution due to indigence are not to be considered as noncompliance);
    • employer recommendations, especially concerning post-conviction employment;
    • educational attainment, or vocational or professional training since the conviction, including training received while incarcerated;
    • completion of or active participation in rehabilitative treatment (e.g., alcohol or drug treatment)
    • letters of recommendation from community organizations, counselors or case managers, teachers, community leaders, or parole/probation officers who have observed the person since his or her conviction;
    • age of the person at the time of conviction; and
    • mitigating factors that contributed to the conviction offered voluntarily by the person, including:
      • explanation of the precedent coercive conditions;
      • intimate physical or emotional abuse; or
      • untreated substance abuse or mental illness

 

Pre-Adverse Action and Adverse Action Notification and Procedural Requirements

Pre-Adverse Action--The Ordinance, like the federal Fair Credit Reporting Act (FCRA), requires an employer to notify a person if the employer is considering taking an adverse action based on conviction information found in a background check report and to provide the person a copy of the background check report.

In addition, the Ordinance requires employers to provide a pre-adverse action notice whenever an employer learns about the conviction history of a person from a source other than a background check report (e.g., if the person discloses conviction information in response to the employer’s inquiry).

The Ordinance also requires:

  • the pre-adverse action notice to specify the “items forming the basis of the prospective adverse action;”
  • the employer to provide the person 7 days to respond to the pre-adverse action notice before making a decision regarding the adverse action;
  • the employer to spend a reasonable period of time reconsidering the adverse action decision in light of any information received from the person responding to the pre-adverse action notice; and
  • to hold the job position open during this process.

Adverse Action—The Ordinance requires the employer to inform the applicant or employee of any final adverse action based on conviction history, regardless of whether the conviction history information was found in the course of the background check or through other means.  (Examples of adverse actions include, without limitation: failing or refusing to hire an individual, discharging an individual, or not promoting an individual.)

 

Anti-retaliation

The Ordinance prevents any retaliation based on a person’s exercise of his/her rights under the Ordinance.  Taking an adverse action against an individual within 90 days after the individual exercises his/her rights under the Ordinance creates a rebuttable presumption that the employer took such action in retaliation for exercise of those rights.

 

Enforcement/Penalties

Office of Labor Standards and Enforcement (OLSE)—If the OLSE finds a violation[3], the following penalties may be assessed:

  • first violation, or any violation during the first12 months the bill is operative—warnings, notices to correct
  • second violation—administrative penalty up to $50 for each person whose rights are violated or continue to be violated (to be paid to the City).
  • subsequent violations—administrative penalty up to $100 for each person whose rights were violated or continue to be violated (to be paid to the City).

Civil Actions—There is no private right of action. Only the City can bring a civil action against an employer for violating the ordinance.

In a civil action, the available remedies are:

  • reinstatement
  • back pay;
  • payment of benefits or pay unlawfully withheld
  • liquidated damages = $50 per employee/applicant whose rights were violated, for each day the violation continued
  • injunctive relief
  • reasonable attorney’s fees and costs

 

Use of Third-Party Recruiting Firm and Staffing Agencies

An employer who hires a third-party recruiting firm to conduct all or part of the hiring process will remain responsible for ensuring compliance with the Ordinance and will be held liable for any violations.

When an employer obtains workers through a staffing agency relationship, both the employer and the staffing agency must ensure compliance with the Ordinance and both may be held liable for any violations.

 

Record Retention

Employers must maintain and retain, for a period of 3 years, records documenting compliance with the Ordinance, including, without limitation:

  • documentation showing that notices were posted as required
  • any background check reports obtained
  • copies of job ads and postings
  • job application forms distributed
  • job applications submitted by applicants
  • documentation of employment interviews including forms, notes and interview questions
  • any information provided to an applicant regarding potential adverse action
  • any information received from an applicant or employee in response to a background check
  • documentation of all individualized assessments conducted
  • any documentation of rehabilitation or mitigating factors submitted by applicants or employees
  • documentation of adverse actions based on unresolved arrest or conviction records
  • documentation of hiring or promoting individuals after considering unresolved arrest or conviction records

Employers who fail to maintain or retain adequate records documenting compliance with the Ordinance are presumed to have violated the Ordinance, absent clear and convincing evidence to the contrary.

 

Annual Reporting

Employers are required to submit an annual reporting form to the OLSE, which will be available on the OLSE website.

 

For More Information

The OLSE published FAQs on its website on August 11, 2014, which are available here.

 

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

If you have questions regarding the San Francisco Fair Chance 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] A “conviction” is a felony or misdemeanor conviction for which the person has been placed on probation, fined, imprisoned, or paroled.

[2] An “unresolved arrest” is an arrest undergoing an active pending criminal investigation or trial that has not yet been resolved. An arrest has been resolved if the person was released and no charges were filed, or if the files have been dismissed or discharged.  Unresolved arrests may be considered by employers as part of the individualized assessment discussed below if and only if the unresolved arrests are directly related to the individual’s ability to do the job and they are less than 7 years old.

[3] Procedural violations impacting multiple employees or applicants at the same time will be treated as a single violation.

 

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.

Affordable Care Act Notice to Employees

All employers subject to the Fair Labor Standards Act are required to provide a one-time written notice of the new marketplace coverage option under the Affordable Care Act (the "ACA").  The notice must be provided to all employees on October 1, 2013, regardless of whether the employees are full-time or part-time or whether they currently participate in an employer-provided health plan.  The federal Department of Labor (the "DOL") has provided employers with two model notices: one version for employers who offer health coverage to some or all employees, which is available at http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf, and another version for employers who do not offer a health plan, which is available at http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf

Employers must provide the notice to employees hired after October 1, 2013 through December 31, 2014 within 14 days of the start of their employment.  The DOL may change the timing requirements for new hires in 2015 or later.

The notice may be sent by first-class mail or electronically.  To provide the notice electronically, an employer must meet the requirements of the DOL's electronic disclosure safe harbor regulation.

For more information regarding requirements for the notice, please see Technical Release No. 2013-02 issued by the DOL on May 8, 2013: http://www.dol.gov/ebsa/newsroom/tr13-02.html.

The ACA employee notice may be provided to employees along with other new hire documents. In addition to the ACA employee notice, the following documents are required to be provided to new hires in California:

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

If you have questions regarding notices required to be provided to California employees, 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.

 

 

 

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.