To address changing demographics in the workplace and the exodus of families from the city, San Francisco became the first municipality to adopt a “right to request” ordinance, formalizing an employee’s ability to request workplace flexibility. (In May 2013, Vermont became the first state to adopt a similar rule). Known as the Family Friendly Workplace Ordinance, it takes effect on Jan. 1, 2014, and applies to all employers in San Francisco with 20 or more employees, except as to those employees covered by a collective bargaining agreement expressly waiving these rights.
This ordinance specifies that employees who have worked with an employer for six months and work at least eight hours per week may submit a written request for a flexible or predictable working arrangement to assist with caregiving responsibilities for a child, family members with a serious health condition, or a parent 65 years or older. “Flexible working arrangement” is defined as changes in the employee’s terms and conditions of employment that provide flexibility to assist with caregiving responsibilities and may include, but is not limited to, a modified work schedule, telecommuting, job sharing arrangements or changes or reduction in work duties. “Predictable working arrangement” is defined as a change in the employee’s terms and conditions of employment that provide scheduling predictability to assist with caregiving responsibilities. Employees will be permitted to make such requests twice every 12 months, and potentially additional requests if the employee experiences a “major life event” (e.g., defined to include a birth/adoption of a child or an increase in caregiving duties).
The ordinance also outlines very specific procedures an employer must follow after receiving a written request. For instance, it specifies an employer must meet with the employee within twenty one days of the written request to discuss the request. The employer must also thereafter consider and respond in writing within twenty one days to an employee’s flexibility request, unless the employee agrees in writing to additional time to respond. An employer who grants the request must confirm this agreement in writing, and an employer who denies the request must explain the bona fide reason for the denial and notify the employer of their right to request reconsideration and provide a copy of the ordinance provision outlining this reconsideration process. “Bona fide reason” is defined to include, but is not limited to, the cost of the proposed change, the detrimental effect on customer or client demands, the inability organize work among other employees, and the insufficiency of work to be performed at the proposed work time.
An employee whose request for a flexible or predictable arrangement is denied may submit a written request for reconsideration within 30 days of the decision, which again triggers the employer’s duty to meet with 21 days, and to respond in writing within 21 days of the second meeting.
Once a flexible or predictable arrangement is granted, either the employee or employer may revoke the arrangement by providing fourteen days written notice. However, if either party revokes, the employee may submit a written request for an alternative flexible or predictable arrangement, again triggering the employer’s meeting and written response obligations.
This ordinance also requires employers to post a notice, which the Office of Labor Standards Enforcement (OLSE) will develop, advising employees of these rights. The employer will need to post in a conspicuous place at any workplace or job site where any employee works, and post it in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees at the workplace or job site. Employers will also be required to maintain for three years all documents concerning requests and the employer’s response, and allow the OLSE to access such records.
This ordinance also specifies that it shall be unlawful for any employer to interfere with or restrain any of these rights, and to taken any adverse employment action against any person on the basis of “caregiver status” or for exercising rights protected under this Ordinance. The OLSE is authorized to enforce this ordinance, and for the first twelve months shall issue warnings and notices to correct for violations, and thereafter may impose administrative penalties up to $50.00 payable to the employee for each day or portion thereof that the violation occurred or continued. Where prompt corrective action does not occur, the OLSE may undertake further enforcement measures including a civil action (as outlined) and imposing a civil penalty payable to the city for $50.00 for each employee and each day a violation has occurred. If the city initiates a civil action, it may seek all available legal or equitable relief, including reinstatement, back pay, reimbursement for all withheld benefits, and liquidated damages of $50.00 per employee for each day, and attorneys’ fees and costs.
The OLSE is expected to develop a poster by Jan. 1, 2014. In the interim, the city has published a Legislative Fact Sheet available at http://www.sfbos.org/Modules/ShowDocument.aspx?documentid=45824. The full text of the proposed ordinance is available at: http://sfgsa.org/modules/showdocument.aspx?documentid=10583.
Although this ordinance applies only in San Francisco, California employers with sites in San Francisco may need to modify their policies, and they should expect other municipalities and perhaps the State of California to consider similar laws in 2014.
Michael Kalt is the government affairs director for CalSHRM, and is a partner at Wilson Turner Kosmo LLP in San Diego.