• San Francisco Enacts Flexible Work Arrangement Ordinance
  • October 23, 2013
  • Law Firm: Jackson Lewis P.C. - White Plains Office
  • San Francisco Mayor Edwin M. Lee (D) has signed an Ordinance allowing employees working in the City to request flexible work arrangements to care for a child, family member with a serious health condition, or parent over age 65 without retaliation. Employers must consider employees’ requests and must provide business reasons for denying them. San Francisco joins the State of Vermont, which enacted similar legislation in May 2013, in adding another dimension to employee leave management. The Ordinance becomes operative January 1, 2014.

    Coverage

    Private employers that directly or indirectly employ at least 20 workers in the City of San Francisco are covered. Employees, including part-time employees, are eligible to request flexible work arrangements if they work within San Francisco, have been employed for at least six months, and regularly work at least eight hours per week are covered. Collective bargaining agreements may waive the Ordinance’s rights for unionized employees; however, any waiver must be stated in “clear and unambiguous” terms.

    Requirements

    Under the Ordinance, eligible employees may request flexible or predictable working arrangements to care for a child for whom the employee has parental responsibilities, a person with a serious health condition with whom the employee has a family relationship (as defined in the Ordinance), or an employee’s parent over age 65. The requests must be in writing and may include the following changes:

    • the number of hours that an employee is required to work;
    • the time that an employee is required to work;
    • the employee’s work location;
    • work assignments or other factors; or
    • a change in terms and conditions of employment that provide scheduling predictability to assist the employee in providing care.

    The request must include the proposed date on which the arrangement would become effective, the duration of the arrangement, and how the arrangement relates to caregiving.

    Employees may make such requests twice every 12 months, unless the employee experiences a “major life event,” in which case the employee may make, and the employer must consider, an additional request. A “major life event” is the birth or placement of a child or an increase in the employee’s caregiving duties for a person with a serious health condition. Employers may require verification of caregiving responsibilities as part of any request.

    The employer must meet with the employee within 21 days of the employee’s request. The employer must respond to the request in writing within 21 days of the meeting, unless the period is extended by written agreement. The employer may confirm or deny a request. If the employer denies the request, it must provide a bona fide business reason for the denial and inform the employee of his or her right to request reconsideration. Reasons for denying a request include, but are not limited to, the following:

    • identifiable costs, including the cost of productivity loss, retraining, hiring, or transferring employees from one facility to another;
    • detrimental effect on ability to meet customer or client demands;
    • inability to organize work among other employees; and
    • insufficiency of work to be performed during the time that the employee proposes to work.

    If an employer denies a request for a flexible or predictable work arrangement, the employee may submit a written request for reconsideration within 30 days of the denial. An employer who receives a request for reconsideration must meet with the employee within 21 days of the request and respond to it in writing within 21 days of the meeting. If the request is denied, the employer must provide a business reason for the denial.

    Either the employer or employee may revoke a flexible or predictable work arrangement upon 14 days’ written notice. In such case, the employee may submit an additional request to which the employer must respond as described above, and such requests do not count toward the yearly limit.

    Posting Requirement

    Employers must post a notice published by the Office of Labor Standards Enforcement (“OLSE”) in English, Spanish, Chinese and any other language spoken by at least 5 percent of the workforce regarding employees’ rights under the Ordinance.

    Anti-Retaliation Provisions

    The Ordinance prohibits employers from discriminating against or retaliating against employees because of their caregiving responsibilities or for exercising their rights to request flexible or predictable working arrangements. The Ordinance also prohibits employers from interfering with employees’ exercise of their rights.

    Recordkeeping and Enforcement

    Employers must maintain records related to requests for flexible or predictable work arrangements for a period of three years and allow the OLSE to inspect them. The OLSE is authorized to investigate violations of the Ordinance’s “procedural, posting and documentation” requirements and anti-retaliation provisions; however, a violation cannot be based on the employer’s reasons for denying a request. The OLSE can issue an administrative penalty of $50 per violation for each day of the violation, payable to the employee, and an additional penalty of $50 per violation for each day of the violation payable to the City of San Francisco to offset the costs of investigation and enforcement.

    In addition, the OLSE may bring a civil action to enforce the Ordinance against an employer and seek legal and equitable relief, including, but not limited to, reinstatement, back pay and benefits, liquidated damages in the amount of $50 for each day of the violation, injunctive relief, attorney’s fees and costs. However, no private right of action exists under the Ordinance.

    ***

    This Ordinance will add another layer to managing employee requests for flexible work arrangements for San Francisco employers. Employers must post the required notice and should consider updating their policies and leave management forms to reflect this new requirement. San Francisco employers also should consider training supervisors and managers to handle requests for flexible or predictable work arrangements. Employers with collective bargaining agreements should consider seeking an express waiver of the Ordinance’s requirements.