Seyfarth Synopsis: Wake up San Francisco! Mayor London Breed has approved amendments that will significantly expand the city’s 2014 Family Friendly Workplace Ordinance (“FFWO”). The amendments will go into effect on July 12, 2022.
Everywhere You Look, Everywhere You Turn, There’s Somebody Who Needs . . . Flexible Working Arrangements
Just like our favorite 90s TV dad, Danny Tanner and his comedic cohorts, employees with caregiving responsibilities have been working double duty in their homes and workplaces. Unlike in sitcoms, most employees do not have a full house of help to rely on. Recognizing the real world demands placed on employees over the past several years, San Francisco has passed amendments to its 2014 Family Friendly Workplace Ordinance (“FFWO”), which will go into effect on July 12, 2022.
The 2014 FFWO, discussed here and here, gave covered employees the right to request alternative work arrangements to assist with caregiving responsibilities, but did not entitle employees to a specific response to their requests.
The 2022 amendments may be challenging for employers, as they provide expanded coverage and guarantee flexible or predictable work arrangements for employees with qualifying caregiver responsibilities who provide notice of their preferred arrangement, unless there is undue hardship to the employer.
It’s A Full House Of Covered Employees And Caregiving 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 location;
(b) For six months or more;
2. Working at least eight hours per week on a regular basis; and
3. Providing care for:
a. a child/children under the age of 18;
b. a person/persons with a serious health condition in a family relationship with the employee;
c. or a parent (age 65 or older) of the employee.
The amendments expand protections to include employees teleworking into San Francisco from a location outside of the city. “Telework” is broadly defined as an employee’s work for an employer from the employee’s residence or other location that is not the employer’s office or worksite, provided that the employer maintains an office or worksite within the boundaries of the city at which the employee may work, or prior to COVID-19 was permitted to work.
The amended ordinance also includes in the definition of qualifying caregiver responsibilities care of any person age 65 or older with a family relationship to the employee (where the original ordinance was limited to care for a parent).
When The Flexible Working Arrangements Cause Employers Undue Hardship, Have Mercy
Undue hardship is the only grounds for denying a qualifying employee a flexible or predictable working arrangement. The bases for undue hardship are the same as those included in the 2014 FFWO and may include:
- Cost-Related Hardship: The costs directly caused by flexible or predictable working arrangements, including cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another.
- Client/Customer Impact: Detrimental effect on ability to meet customer or client demands.
- Coordination Difficulties: Inability to organize work among other employees.
- Insufficient Work: Insufficiency of work to be performed during the time or at the location the employee proposes to work.
Employers’ New Interactive Process And Notice Obligations
Under the amended ordinance, the employer may choose to meet with the employee regarding a flexible working arrangement within 14 days of receipt of the notice of this need. This is an optional meeting.
Whether or not the employer opts to conduct a meeting, the employer must respond in writing within 21 days of receipt of the employee’s notice, either confirming the flexible working arrangement or denying the employee’s request and initiating an interactive process to determine an alternate, mutually agreeable arrangement.
A notice initiating the interactive process must include the following:
- The basis for the denial (how the flexible work arrangement created an undue hardship);
- The right to request reconsideration of the denial;
- The right to file a complaint with the San Francisco Office Of Labor Standards Enforcement (OLSE); and
- A copy of the Flexible Work Ordinance Notice
If the interactive process is unsuccessful and employer denies or revokes a flexible or predictable working arrangement, the employer must provide written notice of this decision. The amendments are silent as to any required content of this notice, and we expect the forthcoming FAQs will provide clarification.
If an employee requests reconsideration of the denial within 30 days of the written notice, the employer must meet with the employee within 21 days of the reconsideration request, and inform the employee of the employer’s final decision within 14 days of that meeting. This notice of final decision must be in writing and, if a denial, must explain the employer’s basis for undue hardship and inform the employee of the right to file an OLSE complaint.
You’re In Big Trouble, Mister—Expanded Enforcement Mechanisms For The OLSE
The amendments include several changes to the OLSE’s investigation authority and recourse against an employer who has been found to have violated the amended FFWO.
- What Can The OLSE Review: Under the original FFWO, the OLSE could only review and issue a finding as to whether the employer had complied with the procedural, posting, and documentation requirements of the ordinance. The amendments broaden the scope of the OLSE’s review to include the validity of an employer’s claimed undue hardship.
- Elimination Of The 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. Only after this 12-month window could the OLSE impose an administrative penalty. 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 portion thereof that the violation occurred. Under the amendments, a violating employer is required to pay either the $50/day or portion thereof to each affected employee, or up to the cost of care the employee incurred due to the violation, whichever is greater.
- Non-Complying Employers: Under the original FFWO, if an employer did not promptly comply with the OLSE’s determination, the Agency could initiate a civil action and order a violating employer to pay the city no more than $50 for each day or portion thereof in which a violation occurred, and for each employee to whom the violation occurred or continued. The amendments add a further means of seeking compliance by allowing the OLSE to recover up to the City’s costs for its investigation and remedy of the violation if greater than the $50/day provision.
- Enforcement Of The OLSE’s Decision: The amendments further provide that the OLSE may seek to enforce its final administrative decision through a civil lawsuit and, except where prohibited by State or Federal law, may request that city agencies or departments revoke or suspend registration certificates, permits, or licenses held or requested by the employer until the violation is remedied.
I Need To Get That In Writing, Capiche?
The 2014 FFWO and the 2022 amendments both require employees to make requests in writing. Employers may also ask employees for verification to support their requests.
Employers are also (still) required to post the city’s official FFWO notice in a conspicuous place in English, Spanish, Chinese and any other language spoken by at least 5% of the workforce.
Employers must also retain records to demonstrate compliance for three years from the date of a request for a flexible working arrangement.
Cut – It – Out! Some Exemptions and Waivers Remain
Limited exemptions and waivers contained in the original FFWO have not been modified by the amendments. A collective bargaining agreement can still expressly waive any or all of the provisions of the FFWO, and the OLSE may still exempt certain employees working in public safety or public health functions pursuant to an employer’s request.
Employers impacted by the amendments to the FFWO should develop San Francisco-specific flexible working arrangement policies. The authors and your favorite Seyfarth attorneys are always available to help employers navigate the road to compliance.
Edited by Coby Turner