San Francisco Ordinances

Seyfarth Synopsis: In June 2017, the San Francisco Board of Supervisors passed an ordinance requiring employers to provide a private “lactation location” where new mothers can pump their milk as well as a “lactation break” during the work day, in addition to other amenities. The ordinance is effective January 1, 2018 and is more expansive than current state and federal law requiring employers to make reasonable efforts to provide lactation breaks throughout the workday. In the wake of its passage and the approaching effective date, the City’s Office of Labor Standards Enforcement and Department of Public Health are issuing administrative guidance for employers.

San Francisco’s Lactation Ordinance Is More Comprehensive Than State and Federal Law

As we wrote a few months ago, San Francisco’s Lactation in the Workplace Ordinance goes into effect January 1, 2018. Virtually all San Francisco employers are covered; there is no minimum employee threshold that may exempt smaller employers from coverage. This latest ordinance is another example of the City’s ongoing effort to enact employment regulations with the goal of either addressing a perceived need in the absence of state or federal law (such as the City’s 2007 paid sick leave ordinance that went into effect over eight years before the California version) or, in the case of the lactation ordinance, exceed the requirements of existing law.

The ordinance calls for a private “lactation location” that must meet several requirements. The lactation location must not be a bathroom and must be (1) shielded from view, (2) free from intrusion by other employees or the public, (3) available as needed, (4) “in close proximity to employees’ work area,” and (5) safe, clean, and free of toxic hazardous materials. The employer also is required to provide the employee with a place to sit, a table/desk or surface to place a breast pump and personal items, access to electricity, a sink with running water, and a refrigerator. The ordinance also states that lactation break time “shall, if possible” run concurrently with any break time already provided to the employee, such as unpaid rest periods.

The ordinance’s requirements are certainly rooted in an important public policy addressing the health of new mothers and babies.  But potential problems arise from the ordinance’s use of vague phrases such as “close proximity to employees’ work area.” How close does “close proximity” mean: the same room? Down the hall? In the same building? This means the ordinance is in dire need of clarification to help both employers and employees comply with its novel terms. Enter the San Francisco Office of Labor Standards Enforcement and Department of Public Health to provide guidance.

Administrative Guidance Sheds Light On Compliance Expectations

Perhaps recognizing its own shortcomings, the ordinance requires the San Francisco Department of Public Health to provide employers with guidance for best practices for accommodation, as well as a model policy and model lactation accommodation request form.  To that end, the Department recently posted samples of a Lactation Accommodation Policy and Request for Lactation Accommodation that employers may use in its own operations or as guidance to develop its own policies.

The Department also posted a summary of legal requirements and best practices.  The summary is based on the previous public memo issued by Supervisor Katy Tang, who is the supervisor responsible for drafting and proposing the ordinance.  Interestingly, the “best practices” include “optional but highly recommended amenities” such as a hospital-grade breast pump, calendar or room reservation system, a full length mirror, Wi-Fi, “resource station” for educational literature, and lockers to place personal belongings. They also suggest temporary reduced hours, job sharing, flex time, telecommuting, and allowing the caregiver to bring the child to workplace for feedings. The ordinance currently does not require these amenities, but these best practices may foretell an expectation of how the City may interpret (or amend) the ordinance down the road.

City regulators may also issue interpreting regulations, but that would require adherence to a lengthy rulemaking process that would include the opportunity for stakeholders to provide public comment. We have been in frequent contact with the helpful analysts at the OLSE regarding additional guidance, and have been told that they are still working on the guidance in anticipation of the January 1, 2018 effective date.  Of course, we will continue to update readers on any future developments.

Workplace Solutions

The ordinance requires San Francisco employers to issue its lactation accommodation policy to employees, so employers should review and, if necessary, update their policies to comply.  While the City has posted a sample policy and request form, sample policies are not always right for every employer.  As always, employers still should ensure that any policy they implement and enforce is right for their own operations.

If you would like assistance with a review of your policies, please feel free to contact one of Seyfarth Shaw’s attorneys.

Seyfarth Synopsis: Since the days of Buddy the Elf’s short stint as a retail employee, New York City and many other municipalities have adopted predictive scheduling laws. Though California does not yet have a such a law, San Francisco, Emeryville, and San Jose have adopted predictive scheduling ordinances. With the bustling holiday season upon us, covered employers should make sure that they are complying with these ordinances. We highlight here the requirements of these predictive scheduling ordinances while pointing out some of the best ways to ensure compliance with them.

San Francisco’s Formula Retail Employee Rights Ordinances. Francisco! That’s Fun to Say! Francisco… Frannncisco… Franciscooo…

Which employers are covered? San Francisco’s Formula Retail Employee Rights Ordinances apply to retail establishments with at least 40 locations worldwide and 20 or more employees in San Francisco. The term “retail establishment” is defined loosely to cover many businesses. An employer is considered a retail establishment if it maintains at least two of the following features: a standardized array of merchandise, a standardized facade, a standardized decor and color scheme, uniform apparel, standardized signage, a trademark, or a servicemark. Thus, a food establishment may be considered a retail establishment under the Ordinances. (We know what you are thinking, and no: covered food establishments are not limited to those serving the four main elf food groups—you know, candy, candy canes, candy corns, and syrup.)

In addition to applying to retail establishments, the provisions apply to property services contractors (e.g., janitorial and security services) for work performed in San Francisco at a retail establishment covered by the Ordinances.

What is required under the law? Employers that are covered by San Francisco’s Ordinances are required to do the following:

  • Provide notice:
    • Provide new employees with an initial estimate of their work schedules upon hire. This estimate must include the minimum number of working and on-call shifts the employee can expect to work and the days and hours of those shifts.
    • Provide employees with notice of their work schedules at least two weeks (14 days) in advance.
  • Provide compensation for changes to schedules:
    • If a change is made to an employee’s schedule after the work schedule has been posted, the employer may be required to compensate the employee for the changes. If between 24 hours and seven days remain until the shift, employees are entitled to one hour of pay at regular rate; if employees receive less than 24 hours’ notice, they are entitled to two hours of pay at regular rate for each shift of four hours or less, and four hours of pay at regular rate for each shift of more than four hours.
    • If an employee is scheduled for an on-call shift but is ultimately not required to come into work, then the employee is entitled to two hours of pay at the employee’s regular hourly rate for each shift of four hours or less, and four hours of pay at the employee’s regular hourly rate for each shift of more than four hours.
  • Exceptions: Notice and compensation are not required if a change was needed to address unexpected employee absences due to illness, vacation, or employer-provided time off of which the employer had less than seven days’ notice. Similarly, notice and compensation are not required if a change was needed to address unexpected employee absences due to failure to report to work, termination, or disciplinary action. Similarly, employees are not entitled to notice or compensation when they have to work overtime. To review all of the applicable exceptions, click here.
  • Offer additional work: Before hiring new employees the employer must first offer the additional work to existing qualified part-time employees.
  • Equal treatment: Employers must treat part-time and full-time employees equally with respect to wages, access to time off, and promotion eligibility.

Key Points to Remember About Emeryville’s Fair Workweek Ordinance if You Want to Avoid the Naughty List

Which employers are covered? Emeryville’s Fair Workweek Ordinance applies to retail firms with 56 or more employees globally, and fast food firms with 56 or more employees globally and 20 or more employees within Emeryville. The term “retail firm” is defined narrowly and includes department stores and specialty retailers. A fast food firm is one that does not serve alcohol and that requires patrons to pay before they eat. So if you are serving up the “World’s Best Cup of Coffee” in Emeryville, you just might be covered by the City’s Ordinance.

What is required under the law? Employers that are covered by the Emeryville Ordinance must do the following:

  • Provide notice:
    • Provide new employees with an initial estimate of their work schedules upon hire. This estimate must include a good faith estimate of the employee’s work schedule.
    • Provide employees with notice of their work schedules at least two weeks (14 days) in advance.
  • Provide compensation for changes to schedules:
    • If a change is made to an employee’s schedule after the work schedule has been posted, the employer may be required to compensate the employee for the changes. If between 24 hours and 14 days remain until the shift, the employee is entitled to one hour of pay at their regular rate. If less than 24 hours’ notice is provided and the employee’s hours are canceled or reduced, the employee is entitled to four hours or the number of hours in the scheduled shift, whichever is less. Employees are entitled to one hour of pay at their regular rate for all other changes.
  • Exceptions: As with San Francisco’s Ordinances, Emeryville’s Ordinance contains exceptions. Emeryville has far fewer exceptions, however, than San Francisco does. For instance, requiring an employee to work overtime constitutes a change under the Emeryville Ordinance and entitles the employee to additional pay.
  • Offer of additional work: Before hiring new employees, the employer must first offer the additional work to existing qualified part-time employees.
  • Entitlement to rest periods: Employers must not schedule or require an employee to work during rest periods, without the employee’s consent. The rest period includes the first 11 hours after the end of the previous calendar day’s shift and the first 11 hours following the end of a shift that spanned two calendar days. Employees who agree to work during the rest period are entitled to compensation at one-and-a-half times their regular rate of pay.

San Jose’s Elf-Sized Predictive Scheduling Ordinance

Though San Jose’s Opportunity to Work Ordinance is not, strictly speaking, a predictive scheduling law, the ordinance does require employers to offer additional work to existing qualified part-time employees before hiring new employees. To learn more about San Jose’s Ordinance, click here.

I Like to Comply, Complying’s My Favorite

Though navigating the San Francisco, Emeryville, and San Jose predictive scheduling ordinances is not as difficult as navigating one’s way through the seven levels of the Candy Cane forest, through the sea of swirly twirly gum drops, and out the Lincoln Tunnel, we want to help employers make sure that they are compliant. Here are some tips to help covered employers navigate these predictive scheduling laws:

  • Employers should be sure to keep their employees informed by providing employees with predictive scheduling policies.
  • To the extent possible, employers should try not to change employee schedules after they have been posted. That would be the simplest way to avoid liability under the Emeryville and San Francisco ordinances.
  • At least with respect to covered employees working in San Francisco, employers should minimize or eliminate the use of on-call shifts, except where necessary. Remember, absent limited exceptions, on-call employee who call in and learn their services are not required will be entitled to predictability pay.
  • Though the ordinances do not require communications regarding schedule changes to be in writing, employers would be wise not to solely rely on oral exchanges. It is best to have a signed, written record of schedule receipt and schedule changes.
  • Though the holiday season is an especially busy time for many employers, they should avoid hiring seasonal employees until they have offered the additional hours that they need covered to existing part-time employees.
  • At least in Emeryville, employers should try not to ask employees to work overtime. A covered Emeryville employee who works overtime is not only entitled to compensation at one-and-a-half times their regular rate of pay, but also entitled to one hour of predictability pay.

Workplace Solutions

With the holiday season upon us, employers have a lot to do. One important thing to do is to take the time to comply with any predictive scheduling law. Keep in mind that while California is peculiar, it is not the only place where one can find predictive scheduling laws. Don’t hesitate to reach out to Seyfarth to help you determine whether you are a covered employer under any state or municipal predictive scheduling laws.

Edited by Coby Turner.

Seyfarth Synopsis:  As if high rent and California’s peculiar laws were not enough to worry about, San Francisco employers must also comply with City-specific ordinances. Trailblazing City requirements often exceed state laws and have sometimes been harbingers of state-level enactments. One might say that San Francisco, with its distinctive laws, is to California what California is to the rest of the country. We highlight the Big Eight SFO peculiarities, below.

Minimum Wage

Minimum wage is an example of San Francisco taking the lead and inspiring changes to state law. On July 1, 2017, San Francisco’s minimum wage officially increased to $14.00 per hour; on July 1, 2018, it will jump to $15.00. The rates apply to all employees who work at least two hours per week within the City or County of SF. The City approved these rate increases years before the California Legislature followed suit in passing the Fair Wage Act of 2016, which mandated an annual state-wide increase until it reaches $15.00 in 2020. Might the City then push to exceed this amount come 2020?

Paid Sick Leave

Paid sick leave is another area where City entitlements differ from those available under state law. San Francisco says that all employees, including part-time and temporary workers, are entitled to paid sick leave when they are ill, require medical care, or need to care for their family members or designated person. While state law currently provides employees with three days (24 hours) of paid sick leave for most of the same reasons, the City offers employees significantly more protected paid time off.

San Francisco employers with fewer than 10 employees must allow workers to accrue up to 40 hours, and those with 10 or more employees must allow accrual up to 72 hours. Not only are employees thus entitled to two to three times what the state mandates, but any unused days also carry over year to year (subject to the above accrual caps). Remember that employers must comply with both state and City laws, as satisfying one does not satisfy the other. Originally enacted in 2007, the City amended its paid sick law as of January 1, 2017, so check out the City’s FAQs for additional updates.

Paid Parental Leave & Family Friendly Workplace

San Francisco has its own take on California’s family-related leave programs—with two separate but related ordinances. You may recall that California’s Paid Family Leave offers six weeks of partial pay/wage replacement (after an eight-day waiting period) to employees who are otherwise entitled or permitted to take time off to bond with a new child or to care for a seriously ill family member. The California Family Rights Act (“CFRA”) also mandates that covered employers give 12 weeks of unpaid, protected leave within a year to eligible employees for a child’s birth, adoption, or foster placement, for the employee’s own serious medical condition, or to care for a seriously ill or injured family member. To be eligible for CFRA leave, an employee must have worked for the covered employer for at least a year and have clocked 1250+ hours.

In San Francisco, by contrast, an employee needs only eight hours per week on a regular basis for six months before taking advantage of its Paid Parental Leave benefits. While matching the state’s six weeks of state (EDD) paid time for new child bonding, San Francisco requires that the employer also pay the leave in the form of supplemental compensation that, in conjunction with California’s Paid Family Leave benefits, equals 100% of the employee’s gross weekly wages. Currently, this law applies to employers with 35 or more employees (regardless of location) and employees working 40% or more of their hours in San Francisco. Beginning January 1, 2018, this law will expand to include all employers with 20 or more employees.

San Francisco has a separate ordinance that attempts to make what is often a difficult time easier for individuals who have family caregiving obligations. Employees who have worked eight hours per week for six months can request a flexible or predictable schedule to assist with these responsibilities. Specifically, the law applies to employers with 20 or more workers (regardless of location) and covers caring for children under 18, seriously ill family members, and parents of the employee who are over 65. San Francisco wants the state to know that family friendliness begins here!

Health Care Security

San Francisco’s mandatory health care law ensures that employees are cared for, too. Employers must make health care expenditure payments each quarter for every employee who has been working more than 90 days. Employers with fewer than 20 employees are exempt altogether, but employers with 20-99 employees must spend $1.76 per hour payable per each employee, while those with 100+ must spend $2.64 per hour. The City allows these payments to be made to the employee directly, to the City, or as a contribution to a reimbursement program. Under this ordinance, the City may impose several different penalties for non-compliance, so getting caught not paying these expenditures would certainly be worse than catching a cold!

Fair Chance (SF’s Version of “Ban-the-Box”)

The City does not believe that having been behind bars should necessarily bar the employment of qualified individuals. The Fair Chance ordinance aims to make work more accessible and put applicants with prior arrests or convictions on an even playing field. All employers with more than 20 employees must state in job solicitations that qualified applicants with arrest or conviction records will be considered. Employers also must not ask about such records until after a live interview or a conditional offer, at which time only arrests or convictions directly related to the ability to perform a given job may be considered in the hiring decision. An employer that chooses not to employ an applicant with a record must first allow the individual a chance to respond with evidence of inaccurate information, rehabilitation, or other mitigating factors.

California currently prohibits employers from asking about certain criminal records, including arrests that did not result in criminal convictions and convictions that have been dismissed or expunged. As of July 1, 2017 (per new FEHC regulations that we discussed here that are similar to San Francisco’s law), California employers may not consider criminal records in hiring decisions that would adversely affect individuals belonging to a protected class. If there is a disparate impact, then employers must show that their background check policy is “job-related and consistent with business necessity.” Before making a decision based on criminal records, employers must conduct an individualized assessment that allows anyone screened out by the policy to respond with proof that the background check is inaccurate or with reasons why adverse action should not be taken.

Formula Retail Employee Rights

Whether it be disrupted budgeting, inconvenience, or some other reason, employees can get upset when their work schedule suddenly changes; San Francisco has a law for that. Chain stores with 40+ locations worldwide and 20 or more people working in San Francisco must provide notice of the work schedule two weeks in advance. In addition, employers must provide “predictability pay” whenever an employee’s schedule changes with less than a week’s notice, and if an on-call employee is required to be available but is not called into work during the shift, the employer must still pay them for that time.

These same employers must offer (in writing) any available extra hours to current qualified part-time employees before they can hire someone new to cover the workload. If an establishment is sold, the successor employer must retain, for 90 days, any eligible employee who worked longer than six months before the sale. San Jose voters passed a comparable ordinance, and new legislation was recently introduced in the California legislature with aims to enact a similar law. Beware of these special laws that apply “within the City and County” soon getting a California-sized expansion!

Lactation Accommodation

In June 2017, the San Francisco Board of Supervisors approved specific legislation requiring employers to provide a private space for new mothers to pump their milk. The ordinance goes into effect January 1, 2018, and calls for a clean space that contains a chair, access to electricity, and surface space for a breast pump. In addition, the employee’s workspace must be in close proximity to a sink with running water as well as a refrigerator. Subject to certain exceptions, if such a space does not exist, then one must be constructed. Employers will be required to distribute the company’s lactation accommodation policy to all employees at the time of hiring.

While state and federal law mandate that employers make reasonable efforts to provide new mothers with lactation breaks throughout the workday, San Francisco’s more expansive legislation may very well be a predictor of what’s next to come on the state level.

We will keep you informed of updates and changes to these ordinances as violations can come with hefty penalties or result in administrative investigations and civil suits. It should be noted that some exceptions and exemptions apply, and those details and additional requirements can be found on the San Francisco Office of Labor Standards Enforcement website. To ensure your company is compliant, or if you have questions about anything mentioned here, Seyfarth’s Labor and Employment attorneys are available to assist you.

Edited by Michael A. Wahlander.

 

On April 5, 2016, San Francisco became the first American jurisdiction to mandate fully paid parental leave for parents to bond with their child.  California already provided six weeks of partially paid leave through the state disability insurance program (55% of pay, up to $1,129 per week).  But the Paid Parental Leave Ordinance passed by the San Francisco Board of Supervisors compels employers to make up the difference, providing full pay for all six weeks of leave for most employees. The ordinance is effective January 1, 2017.

Why Does The Ordinance Only Apply To Most Employees? 

Employees must have been employed by their employer for at least 180 days before starting the leave period to be eligible.  Covered employees can be part-time or temporary employees, but they must spend at least 40% of their total weekly hours (and 8 hours per work week) for the employer within the geographic boundaries of San Francisco. Also, employees who qualify for the maximum state benefit are entitled only to a maximum benefit derived by dividing the state’s maximum benefit by the percentage of wage replacement under the California Paid Family Leave Law.  To be eligible for the supplemental compensation under the ordinance, employees must agree to allow their employer to apply up to two weeks of unused accrued vacation leave to help meet the employer’s obligation to provide supplemental compensation.

Which Employers Does The Ordinance Cover?

As of January 1, 2017, the ordinance will apply to all employers who regularly employ 50 or more employees, regardless of location.  Over the following year, the ordinance will be phased in until employers with just 20 employees or more must comply after January 1, 2018.

Where an employee works for more than one covered employer, the employers must contribute pro-rata based on the gross weekly wages received from each employer.  If an employer terminates an employee during the California Paid Family Leave period, then, under the ordinance, the employer must continue to pay supplemental compensation for the remainder of the leave period.

Note that rights under the ordinance can be waived through collective bargaining.

So What Happens Next?

Employers need to be aware that the ordinance includes notice and posting requirements, employer recordkeeping requirements, and anti-retaliation provisions.  The ordinance provides for regulatory implementation and enforcement by the San Francisco Office of Labor Standards Enforcement, as well as a private right of action.  Remedies include restitution, liquidated damages, and injunctive relief, plus attorneys’ fees.

Many larger employers already have leave policies that comply with the ordinance, but many other employers do not.  Employers need to make sure that they have compliant policies in place by the time the law goes into effect next year.  And employers not based in San Francisco, but who have employees who work there, must be especially careful not to run afoul of the new requirements.

If you have any questions about the new San Francisco Paid Parental Leave Ordinance, please reach out to Scott Atkinson or another member of our California Workplace Solutions group for additional guidance.

Edited by David Kadue and Coby Turner.

(Photo) SF StreetBy Laura Maechtlen and Jason Allen

As our loyal CalPecs blog readers know, in November 2014, San Francisco passed two ordinances—“Hours and Retention Protections for Formula Retail Employees” and “Fair Scheduling and Treatment of Formula Retail Employees”—colloquially known, together, as the “San Francisco Retail Workers’ Bill of Rights.”  (Our most recent update and a recent Management Alert can be found here and here, respectively.)  On July 7, 2015, the S.F. Board of Supes proved that the Bill of Rights is a living document by passing an amendment to the SF Workers’ Bill of Rights on the final reading.

Most significantly, the amendment changes the definition of employers covered by the ordinances.  The amendment also modifies some of the requirements imposed on employers and clarifies some open enforcement issues.  The Office of Labor Standards Enforcement (“OLSE”) has posted information about the amendment here and here, and the text of the amendment here. In short: Continue Reading Changes to the S.F. Formula Retail Employee Rights Ordinances

(Photo) SF City HallBy Kristen Verrastro

Yesterday, we attended a meeting at San Francisco City Hall where the Office of Labor Standards Enforcement (OLSE) gave an overview of the San Francisco Retail Labor Protections ordinances.

As our loyal readers know, we have been writing about the comments and activities surrounding the San Francisco ordinances known as the “Retail Workers’ Bill of Rights” for a few months, with our most recent blog post here and our Management Alert here.

In March 2015, Supervisors Mark Farrell and Eric Mar proposed two amendments to the ordinances.  Those proposed amendments would: (1) redefine “Employer” under the ordinances to mean any person or entity that owns or operates a Formula Retail Establishment with 40 or more (rather than 20 or more) Employees in San Francisco; and (2) allow CBAs to include a clear and unambiguous provision where some or all Formula Retail Labor Protections are expressly waived.  We anticipate the Board of Supervisors, or a Sub-Committee of the Board, will address these proposed amendments at a meeting in May.

At yesterday’s meeting, the OLSE presented a slide deck reviewing the ordinances, and answered questions from attendees. The OLSE also released a fact sheet regarding the ordinances (available here) and, in the future, potentially may roll out other guidance around the ordinances’ implementation.

In the meantime, the OLSE will be conducting a webinar tomorrow, Wednesday, April 29th, at which the OLSE is anticipated to again take questions under submission. For more information and a link to sign up for the webinar, click here.

Do note that the webinar has limited reservation space. If you are unable to attend or have questions about which to inquire, contact your Seyfarth attorney.

Stay tuned for more information from the OLSE as it is released. We also will be posting information regarding the Formula Retail Labor Protections ordinances up to the July 3, 2015 operative date and thereafter as it becomes available.

ABC Soup

 

California legislators and regulators continue their efforts to expand employee protections, and the IRS permits a temporary subsidy for separating employees who want to sample the small business exchanges for health care.  Read on for highlights.

 

 

San Francisco Retail Workers Bill Of Rights Redux: The State Legislature Is Cooking Up Trouble Outside Of San Francisco

By Kristen Verrastro and Jason Allen

The same old soup, just reheated?  State Assemblymember né San Francisco Supervisor David Chiu, along with Assemblymember Dr. Shirley Weber, recently introduced statewide legislation called the Fair Scheduling Act (AB 357), a bill meant to provide more predictable and stable work schedules to food and retail workers throughout California.  The full language of AB 357 has not yet been released, but the bill is expected to require food and retail establishments with 500 or more California employees to give at least two weeks’ notice of employee scheduling and provide extra pay for schedule changes made last minute.

As our loyal CalPecs blog readers know, San Francisco recently passed two ordinances—“Hours and Retention Protections for Formula Retail Employees” and “Fair Scheduling and Treatment of Formula Retail Employees”—which, together, are informally known as the “San Francisco Retail Workers’ Bill of Rights.”  (Click here, here, here, and here for our previous coverage.)  Then-Supervisor Chiu introduced the latter of the two ordinances.  Is Assemblymember Chiu simply modifying his recipe for statewide consumption?

Stay tuned and we will keep you posted as more information is released about this proposed legislation.

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This just posted by our Seyfarth Shaw’s Environmental and Safety Law Update:

CA Proposes New Workplace Violence Regulations for Health Care Employers, Home Health Providers and Emergency Responders

By Meagan Newman, Brent I. Clark, and Mark A. Lies, II

A draft proposed regulation from the California Division of Occupational Safety and Health (Cal/OSHA) would require health-care employers, home health and hospice providers and emergency responders to develop workplace violence-prevention plans, train their employees and keep records related to workplace violence incidents.  To read on, click here.

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The Separation Anxiety Continues, But A New IRS Regulation Answers One Question

By Dana Howells and Ben Conley

On February 18, we noted in this space (“Separation Anxiety:  The ABCs of Affordable Care Act & Covered California at Separation From Employment”) that employers are prohibited, in almost every instance, from reimbursing employees for individual health insurance premiums (either through the Covered California marketplace or otherwise).  This is in stark contrast to employers subsidizing COBRA, which is not only permitted but encouraged by being tax free to employers and employees (subject to IRS rules prohibiting discrimination in favor of highly compensated employees, where applicable).  Wouldn’t you know it, the same day we published, the IRS released additional guidance relaxing this limitation for some employers, albeit temporarily.

Specifically, the IRS created a limited transition period during which small employers (generally, those with no more than 50 full-time equivalent employees) may reimburse employees (or former employees) on a pre-tax basis for individual insurance market premiums.  The transition relief only extends through the end of 2015 when, as the IRS notes, the small business exchanges should be operating more smoothly, which provides an alternative to this practice.

For larger employers wishing to subsidize individual exchange coverage for departing employees, options are limited and complex.  Plans covering fewer than two participants who are current employees on the first day of the plan year are exempt from these prohibitions (meaning a plan covering only former employees could reimburse those former employees for individual insurance premiums).  Employers exploring this approach should exercise caution to ensure they have established a truly separate ERISA plan (including a plan document, summary plan description and, although unlikely, an annual report where applicable) to cover this population.  The exemption is not available if the reimbursements are treated as part of the active employee health plan (either intentionally or by default because the employer failed to establish a separate plan).

By Dana Peterson, Laura Maechtlen, Kristen Verrastro, and Duwayne Carr

As our loyal readers know, we have been writing about the comments and activities surrounding the San Francisco ordinances known as the “Retail Workers’ Bill of Rights” for a few months, with our most recent blog post here and our Management Alert here.  As promised, we have our first update to share regarding the implementation of these ordinances.

The San Francisco Office of Labor Standards Enforcement (OLSE) has released a preliminary information page on its website.  So far, no new specifics have been provided (stay tuned), but the OLSE has confirmed the operative date for the Retail Workers’ Bill of Rights is July 3, 2015.  Therefore, all affected employers must be in compliance with the ordinances by July 3rd, just in time for the long holiday weekend.  

Contact your Seyfarth attorney if you have questions about compliance with the ordinances.  We can help ensure that the only fireworks you’re apt to encounter are those in celebration of July 4th! 

We will continue to provide further updates as new information becomes available.

Edited by Julie Yap

By Jason Allen 

Those who spent some time with us last week already know that Bay Area voters took to the polls with an eye toward employees this year. But it wasn’t just with regard to pay. They also ventured into the oh-so-complicated world of sick leave and flexible schedules.

Sick Leave 

As we have discussed before, California’s statewide Healthy Workplaces, Healthy Families Act of 2014 takes effect on January 1, 2015, and will require employers to provide paid sick leave after July 1, 2015 to most employees. The statewide Act may have engendered apoplectic responses in certain circles, but employers in San Francisco and Oakland likely review its mandates with yawns and shrugs to go with their soy lattes. San Francisco had already addressed this subject in 2007, and Oakland intends to impose requirements similar to San Francisco’s when Measure FF takes effect next year. 

Under San Francisco’s Paid Sick Leave Ordinance, employees who regularly work at least eight hours per week in San Francisco accrue one hour of sick leave for every 30 hours worked in the City, just as they do under the state law. The accrued time carries over year to year, with some limitations: for employees of businesses with fewer than 10 employees, the accrued paid sick leave is capped at 40 hours (lower than the state’s cap); for businesses with 10 or more employees, the cap is 72 hours, which is higher than the state’s cap. As with the state law, San Francisco’s ordinance does not require employers to pay employees for any unused accrued sick leave upon separation; employers are not “prevent[ed] from adopting or retaining leave policies that are more generous”; and employees may use sick leave for themselves or to help a family member. Note also that San Francisco employees can designate individuals other than a spouse, domestic partner, or other family member for whom the employee may use paid sick leave to provide assistance or care. The bottom line is that because there are areas where the San Francisco law is less or more generous than the state’s, employers must craft policies for their San Francisco employees that consider the more onerous parts of both the state and local requirements. 

Oakland’s Measure FF, which we discussed last week in the context of wage increases, also imposes sick leave requirements similar to San Francisco’s:  Employees will accrue one hour of leave for every 30 hours worked, capped at 40 hours for businesses with fewer than 10 regular employees and 72 hours for businesses with at least 10 regular employees. As under San Francisco’s ordinance, employees with no spouse or domestic partner may designate one person other than a family member for whose care or assistance they can use paid sick leave. And Oakland’s ordinance will not require any payout for unused accrued leave upon separation. But Oakland’s new ordinance may cause some consternation for employers who already offer PTO policies that meet or exceed Measure FF’s minimum sick leave requirements. 

The issue with Oakland’s new ordinance on this front may stem from its combining minimum wage and sick leave requirements in one ordinance—something that no other Bay Area city has yet done. On one hand, Measure FF includes a provision similar to those in the statewide and San Francisco mandates: employers with existing PTO policies that meet or exceed Measure FF’s sick leave requirements need not provide any additional sick leave. (See Measure FF Section 5.92.030(A)(4).)  On the other hand, the ordinance expressly precludes an employer from funding the required increases in compensation by reducing “vacation, or other non-wage benefits.”  (See Section 5.92.050(A)(2).) While that provision was likely intended to prevent employers from robbing Peter to pay Paul—to essentially pay for the costs associated with the increased minimum wage by reducing other benefits provided to employees—it looks to have additional consequences for employers in Oakland. An employer seeking to modify its existing leave policies to comply with the new ordinance by reducing existing vacation or PTO benefits to establish a distinct sick leave benefit—an adjustment that appears permissible under both state law and San Francisco’s ordinance—may run afoul of Oakland’s ordinance.

Flexible Work Schedules 

The next potential trend in local ordinances or state laws regarding employee benefits may require greater flexibility in determining or modifying employee work schedules. San Francisco stepped onto this previously untrodden ground in 2013, and, on November 4, 2014, Berkeley voters suggested that their City Council follow. 

As detailed here, here, and here, San Francisco’s Family Friendly Workplace Ordinance, effective January 1, 2014, requires employers with 20 or more employees to allow employees who regularly work eight hours per week in San Francisco to request flexible work arrangements so they can assist with caregiving responsibilities for children, parents age 65 or older, or other family members.

By approving The Berkeley Flexible Work Time Initiative of 2014, Berkeley’s voters didn’t quite force their city’s hand, but they certainly gave it an urgent nudge. The initiative “advis[es] the city of Berkeley to pass a right-to-request law that applies to employees in Berkeley.” The provisions for such an ordinance “should be based on the provisions of the Working Families Flexibility Act, first introduced [but not enacted] in Congress in 2007 as Senate Bill S. 2419, and on the Family Friendly Workplace Ordinance, passed by San Francisco in 2013.” We predict that the City will not ignore this hint, and that provisions of the sort advised will find their way into an ordinance within the next year. 

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The law in these areas, much like the ground underlying the Bay Area, is always moving and shaking. Stay tuned. We will provide updates regarding statewide and local requirements on minimum wage, sick leave, and flexible work time as they develop. And, as always, if you have any questions, please reach out to your friendly neighborhood member of Seyfarth’s California Workplace Solutions Team to help you navigate the choppy waters of the Bay.

By Jason Allen 

As the year winds down, we thought it wise to look back at what California’s busiest locality has done in developing local employment law. The folks in the Bay Area have been so busy flexing their employment law muscles that we’ve split this summary into two easily digestible posts to provide what you’ll need to hop on the trolley to compliance city.

Voter-approved measures addressed higher wages, more sick leave, and increasingly flexible work schedules for employees in Oakland, San Francisco, and Berkeley. While many have left their hearts in San Francisco, these measures will have some employers wanting to have their business elsewhere. Those measures require employers to provide wages and benefits that far exceed state and federal requirements. These new laws also may indicate what’s to come for the rest of the very active Bay Area.

Minimum Wage

As this blog has previously covered (e.g., here and here), California recently raised its minimum wage to $9 per hour, effective July 1, 2014—with an increase to $10 per hour scheduled for January 1, 2016. But the state was a bit late to this game, as several  cities had already mandated higher wages for local employees. Cities in the Bay Area have been particularly active here: San Jose ($10.15, effective March 2013, with an annual cost of living adjustment (COLA)), Richmond ($9.60, effective January 2015, with incremental increases to $12.30 by 2017, then an annual COLA), and Berkeley ($10.00, with planned incremental increases culminating at $12.53 by October 2016). 

On November 4, 2014, voters approved the following measures in Oakland and San Francisco that will raise wages in those cities to similar and even higher levels.

Oakland: Ballot Measure FF

Despite Gertrude Stein’s famous observation to the contrary, perhaps in Oakland there is some “there there: On November 4, Oakland voters passed Measure FF, adding provisions to the City’s municipal code regarding a “city minimum wage, sick leave, and other employment standards.” Effective March 2, 2015, Oakland’s minimum wage will increase to $12.25 for any employee who (a) is covered by state and federal minimum wage laws and (b) works at least two hours “[i]n a particular week … within the geographic boundaries of the City for an Employer.” Beginning January 1, 2016, and to celebrate New Year’s Day for every year that follows, the minimum wage will increase in line with a COLA.

The Oakland ordinance also includes a provision specific to employees in hospitality industries that impose “Service Charges” to collect separately for such items as banquets, deliveries, room service, or porterage. Under the new ordinance, Service Charges must be paid directly to the employees performing the relevant services. The section addressing Service Charges specifically exempts “any tip, gratuity, [or] money” given to hospitality workers “by customers over and above the actual amount due for services [or goods] rendered,” perhaps because state law already requires these payments to be provided to the employees.

San Francisco: Proposition J 

Attentive readers of this blog will recall the list of Bay Area cities with recent minimum wage ordinances. San Francisco does not appear on that list, because, as we’ve previously discussed, San Francisco set the standard for a higher minimum wage way back in 2003. That ordinance calls for annual COLA increases and, as of January 1, 2014, had set the floor for wages for San Francisco employees at $10.74.

Unwilling to let the full spotlight shine on the bright side of the Bay, Frisco’s voters, in November, passed Proposition J. This true San Francisco treat for employees has amended the existing ordinance to increase the minimum wage yet again. The local minimum wage now will increase to $11.05 per hour on January 1, 2015; will incrementally increase the minimum wage to $15 per hour by July 1, 2018; and thereafter will annually increase, in accordance with a COLA.1 

While the voters thus decided to ensure the Bay Area remains a pricey place to pay wages, they didn’t stop there. Stay tuned for next week when we walk you through two other areas where Bay Area voters let themselves be heard on behalf of employees: sick time and flexible schedules.


1 Note that “Government Supported Employees”—without getting into too many details, employees either younger than 18 or older than 55, whose positions are subsidized by federal, state, or local governments—will see increases of a different scale. Government Supported Employees must be paid a minimum wage of $12.25 effective May 1, 2015, with annual COLA increases thereafter.