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Requesting Flexible Work: A New Right in San Francisco

By Toni Vranjes  3/10/2014
 

The concept of “work/life balance” is a hot topic nowadays. Employees who also need to care for young children, elderly parents or other family members are seeking ways to get it all done.

In response to growing demand from employees, and in an effort to enhance their reputations, many companies now offer flexible-work options. This may involve working from home to avoid a grueling commute, switching to a part-time schedule or a variety of other arrangements.

In a few places in the United States, though, lawmakers have taken the concept to a whole new level. One of those areas is San Francisco, where a new law gives employees with caregiving responsibilities the right to request flexible work schedules. The city’s Family Friendly Workplace Ordinance—along with a similar law in Vermont—went into effect Jan. 1, 2014.

San Francisco employers need to be aware of the detailed procedures they must follow. To comply with the law, they must inform employees of these new rights, meet tight deadlines for responding to requests and maintain relevant documents.

Right to Request Workplace Flexibility

The new San Francisco law allows certain employees to request flexible or predictable work schedules. Under the ordinance, an employee may request a new schedule to help care for a child, a parent age 65 or older, or any family member with a serious health condition.

To be eligible, the employee must have worked for the employer for at least six months, must regularly work at least eight hours each week and must work in San Francisco.

Under the ordinance, an employee may submit a request twice every 12 months. If the worker experiences a “major life event,” though, an additional request can be made during that time period.

Within 21 days of receiving a request, the employer must meet with the employee. The employer must respond to the request in writing within 21 days of the meeting.

An employer that denies a request must provide a “bona fide business reason” in the written response. Valid reasons could include the cost of lost productivity or the cost of retraining, hiring or transferring workers. Other permissible reasons include a detrimental effect on the ability to meet customer demand, an inability to organize work among other employees or an insufficient amount of work to be done during the proposed new work hours.

Then there’s the issue of what wouldn’t qualify as a valid reason. For instance, if a request was approved, co-workers might feel that the employee is getting preferential treatment, and this might negatively affect their morale. But negative impact on morale wouldn’t be a bona fide business reason, according to attorney James Brown of Sedgwick’s San Francisco office.

If the employer denies the request, the employee can make a request for reconsideration within 30 days of the decision.

For employees who worry about how the boss will react, there are some reassurances. The law prohibits firing a worker or taking other adverse actions in retaliation for the request.

One issue that had generated some confusion is which employers are covered by the new law. On Jan. 7, 2014, the San Francisco Board of Supervisors provided the answer: The law applies to employers that regularly employ 20 or more people, regardless of location.

For example, if a company employs 19 people in Bakersfield and one person in San Francisco, that business is covered by the new ordinance, said attorney Jamerson Allen of Jackson Lewis. But only the San Francisco-based employee would be entitled to the protections of the new law, he added.

City regulators will enforce the new ordinance. The Office of Labor Standards Enforcement (OLSE) can investigate whether a business is complying with all procedural, posting and record-keeping obligations. The OLSE also can investigate any claims of retaliation. But the law prohibits the agency from challenging employers’ reasons for denying a request.

Key Steps for Employers

Businesses have several obligations under the legislation. One requirement is to post a notice in the workplace letting employees know their rights. The notice must be posted in English, Spanish, Chinese and any language spoken by at least 5 percent of the employees at the worksite.

Employers also need to make sure request forms are available. The city has provided a sample form that eligible workers may use to request a new work schedule.

In addition, companies should establish internal procedures for replying to requests. Figure out who will handle the responses and how they’ll be handled, advises Michael Kalt, an attorney at Wilson Turner Kosmo in San Diego. He likens this to the accommodation process for employees with disabilities.

Businesses also should pay special attention to record-keeping. The law requires employers to keep relevant documents for three years from the date of the request. Employers should develop procedures for how they’ll retain the records, said Kalt, who also serves as the government affairs director for CalSHRM, the California State Council of the Society for Human Resource Management. He advises keeping the records in a new file that is separate from an employee’s personnel file.

Meanwhile, attorneys also recommend updating handbooks to include information about the law, and training managers on the required procedures.

The law also includes a section on collective bargaining agreements. Companies with these types of agreements should consider seeking a waiver of the law’s requirements, said Allen, who is based in San Francisco.

Also, if a company has an agreement with a temporary staffing agency, the business should make sure the agency is complying with the ordinance, according to Brown.

Overall, the law will have varying effects on companies, Allen observed. For some employers, “there won’t be much change, except that it will formalize a process that previously was informal,” he said. For others, the impact will be greater, he added.

Aim of the Legislation

The law, which was introduced by Board of Supervisors President David Chiu, aims to reduce “family flight” from San Francisco. According to a legislative fact sheet from Chiu’s office, San Francisco has the lowest percentage of children of any major city in the U.S., based on data from the 2010 census. Thousands of families have left the area since the last census, according to the document. The hope is that family-friendly laws will keep families in the city.

The text of the ordinance highlights key trends that have occurred in recent decades, including the dramatic increase in the number of women in the workforce and the huge increase in the number of single-parent households. The ordinance states that “the demands placed on workers with family responsibilities are greater and more complex today than they were in an earlier era.”

Chiu contends that the voluntary system of flexible-work requests isn’t good enough. The law states that “even when employers offer flexible workplace arrangements, employees may not avail themselves of such arrangements for reasons such as stigma and lack of consistent consideration of such requests.”

Reaction to the New Law

The San Francisco Chamber of Commerce opposed the original version of Chiu’s law, arguing that it was intrusive. One concern was that the city would have been able to challenge employers’ reasons for denying requests, said Dee Dee Workman, the chamber’s director of public policy. The two sides met to discuss the concerns, and Chiu later eliminated that provision and made other changes. The chamber then switched its position to neutral.

“It’s important for employers to be able to make the decisions, without the city being able to second-guess them,” Workman said.

She emphasized that employers need to have flexibility in staffing their businesses.

Nevertheless, companies generally try to help workers who seek flexible or predictable schedules, according to Workman. Even before the ordinance took effect, most San Francisco business owners accommodated employees who made these requests, if possible, she said.

One of those employers is restaurant owner Laurie Thomas, who serves on the board of the Golden Gate Restaurant Association. Thomas said she tries to accommodate workers in these types of situations, and she’s satisfied with the final version of the ordinance.

“I think it was a very fair compromise,” said Thomas, whose restaurants include Rose Pistola. “It’s a good example of the legislative process working.”

But some other employers worry about the new law. Brown said a few of his clients have expressed concerns that employees might abuse the new system. For example, they worry that some workers will make up reasons to request flexible schedules, he said.

Another viewpoint comes from CalSHRM: Kalt said the group values workplace flexibility, but it considers the new law unnecessary.

“It’s well-intentioned but not necessary, since employees have always had the ability to request flexibility,” Kalt said.

He added that, despite the law’s new mandates, problems remain because California’s labor code remains inflexible.

Will This Spread?

Allen said San Francisco has a history of being on the cutting edge of employment mandates, citing laws on paid sick leave, a minimum-wage increase and other issues. Just as those ideas have spread, he expects the flexible-work law to inspire action.

“It wouldn’t surprise me if other cities and states look at this, see how it works and potentially decide they want to adopt the same sort of requirements,” Allen said.

Toni Vranjes is a freelance business writer in San Pedro, Calif.

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