While California’s employment laws are generally considered “employee friendly,” many employers are perhaps not as aware of local city and county laws that go much further than state laws. San Francisco is a prime example and it is important to note both recent and forthcoming changes in its City Ordinances governing employment laws. The following is a summary of some of the San Francisco local ordinances that impose additional requirements on employers in 2018.
Depending on the ordinance, an employer need not be physically located in San Francisco for these ordinances to apply. Sometimes, all that is usually required, depending on the ordinance, is for an employee to perform work in San Francisco. Also, depending on the ordinance, different rules may apply to an employer who is a small or large employer.
Lastly, the ordinances usually define “San Francisco” to include both the city and county of San Francisco. Therefore, whenever this blog references “San Francisco”, we mean the city and county.
Unless otherwise stated, the following ordinances apply to all employees, including part-time and temporary workers, who perform work in a week in San Francisco. The legal status (i.e., undocumented) of an employee does not matter. Further, based on a recent California Supreme Court decision Dynamex Operations West, Inc. v. Superior Court, it is more likely that someone who is an independent contractor may now be considered an “employee.” (Read our firm blog regarding the Dynamex case here.)
Minimum Wage Ordinance
Link: Minimum Wage Ordinance
Employees who work at least two hours in a week in San Francisco must be paid the San Francisco minimum wage. The San Francisco minimum wage will increase to $15.00 per hour on July 1, 2018.
It does not matter than an employee does not live in San Francisco or that the employee is in San Francisco for a delivery, conference or other temporary reason. The higher rate of San Francisco’s minimum wage law applies once that employee performs two (2) or more hours of work in San Francisco and applies to those hours worked in San Francisco. Once that employee leaves San Francisco, the employer can pay the employee the California state minimum wage (unless of course they perform work in a city or county that has its own wage ordinances like San Francisco). If an employer pays the employee two different rates during the workweek, those two different rates may affect the overtime rate. For more information see the DLSE’s frequently asked questions regarding overtime.
Of course, an employer may pay an employee more than $15.00 an hour.
Paid Sick Leave
The San Francisco Office of Labor Standards Enforcement (OLSE) published new Rules Interpreting the Paid Sick Leave Ordinance on May 7, 2018. The new Rules take effect on June 7, 2018.
Employees who perform work in San Francisco on an occasional basis are covered only if the employee works 56 or more hours in San Francisco within a calendar year. For example, an employee who travels through San Francisco and stops to perform work in San Francisco are covered if the employee performs 56 or hour hours of work.. Employees who pass through San Francisco but do not stop in San Francisco as a purpose of their work are not covered. An employee who is training in San Francisco is not covered unless they go over the 56-hour threshold.
Lactation in the Workplace
Employers must provide employees with lactation breaks and a lactation location and must have a policy that explains how employees will make a request for lactation accommodation. OLSE released proposed Lactation in the Workplace Rules and will accept written public comments until June 7, 2018.
Effective July 1, 2018, employers are prohibited from asking applications about their current or past salary or disclosing a current or former employee’s salary history without the employee’s authorization unless the salary history is publicly available. San Francisco’s prohibition is similar to the California statewide ban. However, San Francisco goes further and also prevents employers from disclosing the salary history of any current or former employee to a prospective employer without written authorization from the employee. San Francisco also adds a posting requirement.
You can read about the California state law on consideration of salary history in our blog here.
There are at least four (4) local ordinances that apply to employers with 20 or more employees. However, the employee count includes all persons working for the employer, regardless of whether those employees are in San Francisco or outside of the city or state.
Link: Fair Chance Ordinance
This San Francisco ordinance prohibits covered employers from asking about arrest or conviction records on a job application. On April 3, 2018, the San Francisco Board of Supervisors passed an amendment to the San Francisco Fair Chance Ordinance. The amendment goes into effect on October 1, 2018. A summary of the changes can be found in the Legislative Digest. California has also adopted statewide “ban the box” legislation. Read about the California ban here.
Employers are required by San Francisco ordinance to provide up to six (6) weeks of supplemental compensation to employees who receive California Paid Family Leave benefits to bond with a new child. The law went into effect on January 1, 2018 and OLSE recently posted a link to their May 7, 2018 webinar explaining this new ordinance. For the slides click here; audio and video click here.
There are other San Francisco ordinances, not discussed above, that may apply to employers. Visit the OLSE website for more information on local ordinances.
OLSE Enforcement Authority
The OLSE has authority to enforce the ordinances, including the ability to assess fines and penalties. In a published case regarding a violation of the Minimum Wage Ordinance, the OLSE determined that an employer owed an administrative penalty of over $3 million to 35 employees and owed the City and County of San Francisco the same amount. To read the case, click here.
Since San Francisco ordinances usually contain a broad definition of “employer” or “employee,” employers should consult with an employment attorney to identify whether your business must comply with San Francisco ordinances. Sutton Hague Law Corporation will host a Mid-Year Employment Law Update for Nevada Employers on Wednesday, June 6, 2018 and a Mid-Year Employment Law Update for California Employers on Thursday, June 7, 2018. Local Ordinances impacting employment law will be a topic of discussion at the June 7 webinar.