Oh Mylanta! San Francisco Amends Family-Friendly Workplace Ordinance – Employee Rights/Labour Relations

Synopsis of Seyfarth: Wake up San Francisco! The Mayor of London Breed has approved changes that will significantly expand the city’s Family Friendly Workplaces (“FFWO”) 2014 ordinance. The changes will come into effect on July 12, 2022.

Everywhere you look, everywhere you turn, there’s someone in need. . . Flexible working arrangements

Much like our favorite ’90s TV dad, Danny Tanner and his comedian cohorts, employees with caregiving responsibilities have worked both at home and in the workplace. Unlike sitcoms, most employees don’t have full help to rely on. Recognizing the real demands placed on employees in recent years, San Francisco passed amendments to its Family-Friendly Workplace (“FFWO”) Ordinance of 2014, which will take effect July 12, 2022.

The 2014 FFWO, discussed here and here, gave covered employees the right to request alternative work arrangements to help them meet their caregiving responsibilities, but did not give employees the right to receive a specific response to their requests.

The 2022 amendments may be difficult for employers, as they provide expanded coverage and guarantee flexible or predictable work arrangements for employees with eligible caregiver responsibilities who give advance notice of their preferred plan, unless there is undue hardship to the employer.

It’s a house full of covered employees and care activities

Under the original FFWO, employees were protected if they were:

1. Employed in San Francisco;

(a) By an employer with 20 or more employees, regardless of place of employment;

(b) For six months or more;

2. Work at least eight hours a week on a regular basis; and

3. Treat:

a. one or more children under the age of 18;

b. a person(s) with a serious health problem and having a family link with the employee;

vs. or a relative (age 65 or older) of the employee.

The amendments expand the protections to include employees telecommuting in San Francisco from an out-of-town location. “Telecommuting” is broadly defined as the work of an employee for an employer from the employee’s residence or from another location that is not the employer’s office or workplace. , provided the employer maintains an office or workplace within the city limits where the employee may work , or prior to COVID-19 was permitted to work.

The amended order also includes in the definition of eligible caregiver responsibilities the care of every person aged 65 or over with a family connection to the employee (when the initial order was limited to caring for a relative).

When flexible working arrangements cause undue hardship for employers, have mercy

Undue hardship is the only ground for denying an eligible employee a flexible or predictable work arrangement. The bases for undue hardship are the same as those included in the 2014 FFWO and may include:

  • Cost challenges: costs directly caused by flexible or predictable work arrangements, including the cost of lost productivity, retraining or hiring employees, or transferring employees from one location to another. other.

  • Customer/Client Impact: Adverse effect on the ability to respond to customer or customer requests.

  • Coordination Difficulties: Inability to organize work between other employees.

  • Insufficient Work: Insufficient work to be performed during the time or place the employee proposes to work.

New interactive process and employer notification obligations

Under the amended order, the employer may choose to meet with the employee about a flexible work arrangement within 14 days of receiving notice of this need. This is an optional meeting.

Whether or not the employer chooses to hold a meeting, the employer must respond in writing within 21 days of receiving the employee’s notice, either confirming the flexible work arrangement or denying the employee’s request and initiating an interactive process to determine a mutually acceptable alternate arrangement.

A notice initiating the interactive process must include the following elements:

  • The basis for the refusal (how the flexible work schedule created undue hardship);

  • The right to request reconsideration of the refusal;

  • The right to file a complaint with the San Francisco Office of Labor Standards Enforcement (OLSE); and

  • A copy of the flexible working ordinance notice

If the interactive process fails and the employer refuses or revokes a flexible or predictable work arrangement, the employer must provide written notice of this decision. The edits are silent as to the required content of this notice, and we expect future FAQs to provide clarification.

If an employee requests reconsideration of the refusal within 30 days of written notice, the employer must meet with the employee within 21 days of the request for reconsideration and advise the employee of the employer’s final decision within 14 days following this meeting. This Notice of Final Determination must be in writing and, if a denial, must explain the employer’s reasons for undue hardship and inform the employee of their right to file a complaint with the OLSE. .

You’re in big trouble, sir.—Extended enforcement mechanisms for OLSE

The amendments include several changes to OLSE’s investigative authority and remedies against an employer who has been found to have violated the amended FFWO.

  • What can the OLSE exam do? Under the original FFWO, the OLSE could only review and make a finding as to whether the employer had complied with the procedural, posting and documentation requirements of the order. The amendments expand the scope of OLSE’s review to include the validity of undue hardship alleged by an employer.

  • Elimination of OLSE’s 12-month warning period: Under the original FFWO, during the first 12 months of an OLSE investigation, the Agency could issue warnings and notices to employers to correct potential violations. It is only after this 12-month window that the OLSE could impose an administrative sanction. The amendments eliminate this warning period.

  • Enforcement Parameters: Under the original FFWO, the OLSE could require a violating employer to pay up to $50 to each employee for each day or part thereof that the violation occurred. Under the amendments, a violating employer is required to pay either $50/day or a portion thereof to each affected employee, or up to the cost of care the employee incurred as a result of the violation, whichever is greater.

  • Non-Compliant Employers: Under the original FFWO, if an employer did not promptly comply with the OLSE’s decision, the Agency could file a civil suit and order a non-compliant employer not to pay the city more than $50 for each day or part thereof on which a violation occurred, and for each employee at whom the violation occurred or continued. The amendments add another means of achieving compliance by allowing OLSE to recover up to the City’s costs for its investigation and remedy of the violation if they exceed the $50/day provision. .

  • Enforcement of OLSE’s decision: The amendments further provide that the OLSE may seek to enforce its final administrative decision through civil court action and, unless federal or state law l prohibited, may direct city agencies or departments to revoke or suspend registration certificates, permits, or licenses held or applied for by the employer until the violation is remedied.

I need to have this in writing, Capiche?

Both the 2014 FFWO and the 2022 Amendments require employees to make requests in writing. Employers can also ask employees for verification to support their claims.

Employers are also (still) required to post the city’s official FFWO notice in a prominent location in English, Spanish, Chinese, and any other language spoken by at least 5% of the workforce.

Employers must also keep records to demonstrate compliance for three years from the date of a flexible work arrangement request.

Cut! Certain exemptions and derogations remain

The limited exemptions and waivers contained in the original FFWO have not been changed by the amendments. A collective agreement can always expressly waive all or part of the provisions of the FFWO, and the OLSE can always exempt certain employees working in public safety or public health functions at the request of an employer.

Workplace Solutions

Employers affected by changes to the FFWO should develop flexible work arrangement policies specific to San Francisco. Authors and your favorite Seyfarth attorneys are always available to help employers navigate the path to compliance.

Edited by Coby Turner

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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