Two Steps Ahead: San Francisco’s Employment Laws
August 7, 2017
Employers, are you wondering what new employment laws are on the horizon for California? Just look to San Francisco, which has historically been two steps ahead of California when it comes to employment laws. The city has enacted several employment ordinances years prior to California enacting similar state-wide laws. For example, San Francisco’s Paid Sick Leave Ordinance went into effect in February 2007, which was eight years prior to California enacting its paid sick leave law. Below are numerous San Francisco ordinances that every California employer should pay attention to.
The two San Francisco ordinances below are landmark laws for which there are currently California-equivalent bills making their way through the legislature.
Parity in Pay Ordinance
San Francisco: Just a few weeks ago, on July 19, 2017, San Francisco Mayor Lee signed into law the “Parity in Pay Ordinance,” which aims to close the wage gap between men and women. This ordinance specifically will prohibit employers from asking the prior salary history of any job applicants who work within the City’s geographic boundaries. The law will go into effect on July 1, 2018.
California: In 2015, Governor Brown vetoed a similar state-wide bill. The bill is back this year; Assembly Bill 168, which would prohibit any employer from seeking salary history information about an applicant, has recently passed through the California State Assembly and is under review in the State Senate.
Fair Chance Ordinance
San Francisco: San Francisco’s “Fair Chance Ordinance” (a.k.a. Ban the Box Ordinance), in effect since August 13, 2014, prohibits employers from inquiring about a job applicant’s criminal history on an employment application and during the initial interview. After the initial interview, employers are still prohibited from asking applicants about arrests, completion of diversion programs, sealed juvenile offenses and offenses that are more than seven years old from the date of sentencing and those that are not misdemeanors or felonies.
If an applicant discloses his/her criminal history, employers can only use that information in the selection process if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” If an employer decides to reject an applicant because of criminal history, it must provide written preliminary and final notification of the decision.
California: While California already prohibits employers from asking applicants to disclose arrests that did not lead to a conviction or about a pretrial or post-trial diversion programs, a more restrictive “Ban the Box” bill (AB 1008) is currently making its way through California’s legislature. It has passed in the state Assembly and is now in the Senate Appropriations Committee. AB 1008 is similar to San Francisco’s ordinance as it seeks to make it unlawful for a California employer to inquire about an applicant’s criminal history on an application and before receipt of a conditional offer of employment. It also would not allow employers to consider in hiring decisions misdemeanor convictions for which no jail sentence can be imposed, infractions or misdemeanor convictions for which three years have passed since the date of the conviction, and felony convictions for which seven years have passed since the date of conviction. The bill also includes a similarly strict process for employers who choose to rely on the criminal background information to not hire an applicant.
Expanding California’s Employment Laws
The two San Francisco ordinances below are more generous and expansive versions of existing California employment laws.
Paid Parental Leave Ordinance
San Francisco’s Paid Parental Leave Ordinance (“PPLO”) provides paid bonding leave for parents with a minor child during the first year after birth or placement through foster care or adoption. It expands on California’s Paid Family Leave (“PFL”) benefits program, which allows parents to receive wage-replacement benefits for six weeks of up to 55% of their wages when on leave. The PPLO will mandate employers to pay eligible employees the 45% difference (called “supplemental compensation”) so that employees are being paid 100% of their wages for those six weeks of leave.
Eligible Employees are part-time, full-time and temporary employees who have: 1) Worked for the covered employer at least 180 days prior to the start of the leave period, 2) performed at least eight hours of work per week for the employer in San Francisco, 3) worked at least 40% of the total weekly hours for the employer in San Francisco, and 4) are eligible to receive benefits under California’s PFL law for the purpose of bonding with a new child.
The PPLO went into effect for employers with 50 or more employees on January 1, 2017. Smaller employers, with 35 or more employees and 20 or more employees, will be required to comply by July 1, 2017 and Jan. 1, 2018, respectively.
Lactation in the Workplace Ordinance
On June 30, 2017, San Francisco Mayor Ed Lee signed into law the “Lactation in the Workplace Ordinance”. This ordinance expands on California’s existing lactation laws, which already require employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area, to express milk in private. San Francisco’s ordinance, which goes into effect on January 1, 2018, will require employers to provide a lactation room that is safe, clean and free of toxic or hazardous materials and contains a surface to place a breast pump and other personal items, a place to sit, access to electricity, a refrigerator and a sink. The Ordinance also requires employers to maintain a written lactation policy and to record employees’ request for lactation accommodations for three years.
A Window into the Future
The three San Francisco ordinances below are unique to the City by the Bay. However, if history is an indication of the future, we may see California following suit.
Family Friendly Workplace Ordinance
Since January 2014, San Francisco has had in effect the “Family Friendly Workplace Ordinance.” This ordinance requires employers with 20 or more employees to allow employees who have been employed in San Francisco, for six months or more by the current employer, and works at least eight hours per week on a regular basis to request a flexible or predictable work arrangement. Specifically, the employee may request this work arrangement if they care for: 1) a child under 18 years of age, 2) a family member with a serious health condition, or 3) a parent over 65 years or older.
Retail Workers Bill of Rights
In 2015, San Francisco enacted the “Retail Workers Bill of Rights” which applies to chain restaurants and stores with 20 or more employees in San Francisco. This Ordinance requires retail establishments to 1) offer existing part-time employees’ additional hours of work before hiring new employees, 2) provide employees with two weeks’ notice of work schedules “predictability pay” if schedules change with less than 1 week’s notice, 3) pay employees for on-call shifts when not called into work, 4) provide part-time employees with the same starting hourly wage, access to time off, and eligibility for promotions as full-time employees who perform similar work, and 5) continue to employ all employees for 90 days if the store changes ownership.
Health Care Security Ordinance
San Francisco's Health Care Security Ordinance (“HCSO”), which went into effect in 2008, requires covered employers to spend a minimum amount of money on health care benefits for their covered employees. This law applies to employers with 20 or more employees (50 or more employees if a nonprofit); for the purpose of determining employer size, all employees must be counted, regardless of hours worked and if they are working in San Francisco. Covered employees are those who work in the geographic boundaries of the city and county of San Francisco, have been employed at least 90 calendar days, and work at least 8 hours per week.
The minimum health care expenditure depends on the size of the employer and is calculated by multiplying the total number of hours paid to the covered employee by the applicable health care expenditure rate. The employers pay the covered employees directly or a third party on behalf of its covered employees for the purpose of providing health care services or reimbursing the cost of such services.