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In April, the San Francisco Board of Supervisors unanimously approved an ordinance that provides six weeks of parental leave for bonding with a new child at 100 percent of the employee’s rate of pay (subject to certain caps). The ordinance, which will take effect beginning Jan. 1, 2017, will make San Francisco the first U.S. city to require employer-paid parental leave.
The new ordinance will go above and beyond the California state mandate, which currently provides covered employees six weeks of paid family leave at 55 percent of their pay for baby bonding or to care for a sick family member. That paid leave is funded by the employee who is taking the leave, through regular payroll contributions to the California State Disability Insurance program. The new ordinance requires covered San Francisco employers to pay the remaining 45 percent of a covered employee’s wages during the six weeks of paid parental leave.
The law’s effective dates are staggered as follows:
Size of Employer
Jan. 1, 2017
50 or more employees regardless of the employees’ location.
July 1, 2017
35 or more employees regardless of the employees’ location.
Jan. 1, 2018
20 or more employees regardless of the employees’ location.
In determining the size of a covered employer, the ordinance looks at the size of an employer’s total workforce, regardless of the actual location of the employees. Accordingly, an employer may be subject to the ordinance even if it does not employ 50 (or 20) employees within the city of San Francisco.
The city and other governmental entities are not covered employers under the ordinance.
Employees (including part-time and temporary employees) are eligible for the fully paid leave if they meet all of the following criteria:
Notably, employee eligibility is based on the number of hours the employee works in San Francisco, regardless of his or her residence and regardless of the employer’s work location.
Union employees are not covered if (1) their collective bargaining agreement expressly waives the requirements under the ordinance in clear and unambiguous terms, or (2) the collective bargaining agreement was entered into before the ordinance’s effective date.
How Much Do Employers Need to Pay?
The new ordinance requires covered employers to pay 45 percent of the employee’s weekly gross wages, up to a maximum of $924 per week, for six weeks. This cap is based on the California Paid Family Leave program’s 55 percent wage replacement provision, which is capped at $1,129 per week. Between the two programs, covered employees should receive 100 percent wage replacement for a six-week parental leave, up to a total of $2,053 per week.
What if the Employee Works for Multiple Employers?
If the covered employee works for more than one employer, the 45 percent supplemental compensation amount is apportioned between or among the covered employers based on the percentage of the employee’s total weekly wages received from each employer. For example, if the employee earns $800 per week from Employer A and $200 per week from Employer B for a combined total of $1,000, Employer A pays 80 percent of the supplemental compensation and Employer B pays 20 percent of the supplemental compensation.
Can the Employer Require the Use of Vacation?
An employer can require employees to use up to two weeks of unused, accrued vacation to help meet the employer’s obligation under the ordinance. This vacation time can be counted toward the six-week paid parental leave period.
Employers may not interfere with, discriminate or retaliate against employees for exercising their rights under the ordinance. Terminating a covered employee within 90 days of their request or application for California Paid Family Leave, or taking adverse action against an employee within 90 days of their filing a complaint based on the new ordinance, will raise a rebuttable presumption that such action was taken to avoid the employer’s obligations under the law.
Notice and Posting
Employers will be required to post in a conspicuous place, at any workplace where a covered employee works, a notice informing employees of their rights under the ordinance. The notice must be in English, Spanish, Chinese and any other language spoken by at least 5 percent of the employees at the workplace or job site.
Employers must retain for three years records documenting the supplemental compensation paid to its employees, and make the records available to San Francisco’s Office of Labor Standards Enforcement (OLSE) upon request. Failure to do so will raise a rebuttable presumption that the employer has violated the ordinance.
Damages and Penalties for Violations
The ordinance provides for remedies through the OLSE and through the courts. The OLSE or “a person or entity acting on behalf of the public as provided for under applicable state law” may bring a civil action in court for alleged violations of the ordinance.
If the OLSE (after an administrative hearing) or court determines that the employer has violated the ordinance, the employer may be required to pay:
Courts may also provide injunctive relief. In addition, the OLSE may require the employer to pay the City penalties of $50 per day per “employee or person as to whom the violation occurred or continued.”
Paid leave is an area gaining increasing attention from state and local governments. San Francisco’s new law comes on the heels of New York state’s enactment of a new paid family leave law and California’s Assembly Bill No. 908 which, beginning in 2018, will raise California’s current family leave pay rate from 55 percent to 60 percent or 70 percent depending on the employee’s wage rate. The U.S. Department of Labor has also set requirements for federal contractors to provide their employees with paid sick leave.
While San Francisco has gone farther than any other jurisdiction in what it requires employers to provide to new parents, employers should expect similar legislation in more jurisdictions across the U.S. in the years to come.
Anna Stancu is an attorney with Sheppard Mullin in Los Angeles. © 2016 Sheppard Mullin. All rights reserved. Reposted with permission.
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