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Applicability of Chapter to Contractors and Subcontractors.
All Contracts and Property Contracts to Include Provision Requiring Compliance with this Chapter.
Prohibitions on Use of Salary History in Hiring.
Nonapplicability, Exceptions, and Waivers.
Notice and Posting Requirements for Employers.
Implementation and Enforcement.
Undertaking for the General Welfare.
Ord. 142-17, approved July 19, 2017, effective August 18, 2017, and becoming operative July 1, 2018, added provisions designated as a new Ch. 12K, Salary History, and redesignated former Ch. 12K, Local Implementation of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), as Ch. 33A.
As used in this Chapter 12K, the following terms have the following meanings:
“Applicant” shall mean a person applying for Employment to be performed on a Contract or Property Contract or in furtherance of a Contract or Property Contract, and whose application, in whole or part, will be solicited, received, processed or considered, whether or not through an interview, in the City or on City property. “Applicant” shall not include a person applying for Employment with their current Employer.
“City” shall mean City and County of San Francisco.
“Contract” shall mean an agreement between a City department and any person or entity that provides, at the expense of the City, for public works or public improvements to be purchased under Chapter 6 of the Administrative Code, or for commodities or services to be purchased under Chapter 21 of the Administrative Code. “Contract” shall not include:
(a) Agreements for the investment of trust money or relating to the management of trust assets, agreements to invest City moneys in U.S. government securities, or agreements for the investment, deposit, or safekeeping of City moneys, where, for any such agreement, the Treasurer, as a fiduciary of the City, determines that entering into the agreement is in the interest of soundly investing public assets; or
(b) Agreements entered into for underwriting services for the purchase and sale of City bonds, notes, and other forms of indebtedness; or
(c) Agreements advertised, solicited, or initiated prior to the Operative Date of this Chapter 12K, including amendments to existing Contracts; or
(d) Agreements for a cumulative amount of $10,000 or less per Contractor in each fiscal year; or
(e) Agreements with a public entity or public utility.
“Contractor” shall mean any person or persons, firm, partnership, corporation, or combination thereof who enters into a Contract or Property Contract with the City.
“Employer” shall mean any Contractor or Subcontractor, whether an individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized. “Employer” includes job placement and referral agencies and other employment agencies working on behalf of a Contractor or Subcontractor. “Employer” does not include any unit of local, state, or federal government. The physical location of the employment or prospective employment of an Applicant must be at least eight hours per week on City property.
“Employment” shall mean any occupation, vocation, job, or work, including but not limited to temporary or seasonal work, part-time work, contracted work, contingent work, work on commission, and work through the services of a temporary or other employment agency, for which the Applicant is to receive a Salary. Employment doesn’t include work as an independent contractor.
“Inquire” shall mean any direct or indirect statement, question, prompting, or other communication, orally or in writing, personally or through an agent, to gather information from or about an Applicant, using any mode of communication, including but not limited to application forms and interviews.
“OLSE” shall mean the Office of Labor Standards Enforcement or any successor department or office. The “Director” of OLSE shall mean the head of OLSE.
“Property Contract” shall mean a lease, permit, or license, through which the City gives to a person or entity the right to exclusively use or occupy real property owned or controlled by the City for a period of more than 29 days in any calendar year. “Property Contract” shall not mean:
(a) An agreement with a public entity or public utility;
(b) A revocable at-will permit regardless of the ultimate duration of such permit, unless the permittee engages in a for-profit activity on the City property;
(c) Regulatory permits, including street or public right of way construction, excavation and use permits;
(d) Agreements governing the use of City property which constitutes a public forum for activities that are primarily for the purpose of espousing or advocating causes or ideas and that are generally recognized as protected by the First Amendment to the U.S. Constitution;
(e) Agreements for activities which are primarily recreational in nature, unless the user engages in a for-profit activity on the City property; or
(f) Agreements advertised, solicited, or initiated prior to the Operative Date of this Chapter 12K, including amendments to existing Contracts.
“Salary” shall mean an Applicant’s financial compensation in exchange for labor, including but not limited to wages, commissions, and any monetary emolument.
“Salary History” shall mean an Applicant’s current and past Salary in the Applicant’s current position, or in a prior position with the current Employer or a prior Employer.
“Subcontract” shall mean an agreement to (a) provide goods and/or services, including construction labor, materials or equipment, to a Contractor, if such goods or services are procured or used in the fulfillment of the Contractor’s obligations arising from a Contract with the City, or (b) to transfer the right to occupy or use all or a portion of a real property interest subject to a Property Contract to a Subcontractor and pursuant to which the Contractor remains obligated under the Property Contract.
“Subcontractor” shall mean any person or persons, firm, partnership, corporation or any combination thereof who enters into a Subcontract with a Contractor. Such term shall include any person or entity who enters into an agreement with any Subcontractor for the performance of 10% or more of any Subcontract.
(Former Sec. 12K.1 added by Ord. 128-98, App. 4/13/98; amended by Ord. 325-00, File No. 001920, App. 12/28/2000; redesignated as Sec. 33A.1 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
The requirements of this Chapter 12K shall only apply to a Contractor’s or Subcontractor’s operations to the extent those operations are in furtherance of performing a Contract or Property Contract with the City. Accordingly, the protections of this Chapter apply only to applicants and employees who would be or are performing work in furtherance of performing a Contract or Property Contract with the City.
(Former Sec. 12K.2 added by Ord. 325-00, File No. 001920, App. 12/28/2000; redesignated as Sec. 33A.2 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
(Former Sec. 12K.2 added by Ord. 128-98, App. 4/13/98; renumbered as Sec. 12K.3 by Ord. 325-00)
All contracting agencies of the City, or any department thereof, acting for or on behalf of the City, shall include in all Contracts and Property Contracts a provision requiring Contractor’s compliance with this Chapter 12K and shall require such Contractor to include a similar provision in all Subcontracts executed and amended thereunder, and failure to do so shall constitute a material breach of contract.
(Former Sec. 12K.3 added as Sec. 12K.2 by Ord. 128-98, App. 4/13/98; renumbered and amended by Ord. 325-00, File No. 001920, App. 12/28/2000; redesignated as Sec. 33A.3 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
(a) An Employer shall not Inquire about an Applicant’s Salary History.
(b) An Employer shall not consider an applicant’s Salary History as a factor in determining whether to offer Employment or what Salary to offer an Applicant.
(c) An Employer shall not refuse to hire, or otherwise disfavor, injure, or retaliate against an Applicant for not disclosing his or her Salary History to the Employer.
(d) An Employer shall not release the Salary History of any current or former employee to that person’s Employer or prospective Employer without written authorization from the current or former employee unless the release of Salary History is required by law, is part of a publicly available record, or is subject to a collective bargaining agreement.
(e) Nothing in this Chapter 12K shall prohibit an Applicant from voluntarily and without prompting disclosing Salary History.
(f) Where an Applicant voluntarily and without prompting discloses Salary History to a prospective Employer, nothing in this Chapter 12K shall prohibit that Employer from considering that voluntarily disclosed Salary History in determining Salary for such Applicant or verifying such Applicant’s Salary History.
(g) An Employer may, without inquiring about Salary History, engage in discussion with the Applicant about the Applicant’s expectations with respect to Salary, including but not limited to unvested equity or deferred compensation or bonus that an Applicant would forfeit or have cancelled by virtue of the Applicant’s resignation from their current Employer.
(h) Nothing in this Chapter 12K shall prohibit an Employer from verifying non-Salary related information disclosed by the Applicant or from conducting a background check provided that when such verification or background check discloses the Applicant’s Salary History, the disclosed Salary History shall not be considered for purposes of determining the Salary to be offered to the Applicant during the hiring process.
(Former Sec. 12K.4 added as Sec. 12K.3 by Ord. 128-98, App. 4/13/98; renumbered and amended by Ord. 325-00, File No. 001920, App. 12/28/2000; redesignated as Sec. 33A.4 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
(a) Section 12K.4 shall not apply to Contracts, Subcontracts, or Property Contracts in the following circumstances:
(1) The contracting City department determines that needed services under the applicable Contract are available only from one source pursuant to applicable provisions of the Administrative Code; or
(2) The contracting City Department determines, pursuant to applicable provisions of the Administrative Code, that the Contract is necessary to respond to an emergency which endangers the public health or safety; and no entity that complies with Section 12K.4 and is capable of responding to the emergency is immediately available to perform the required services; or
(3) The contracting City department determines that there are no qualified responsive bidders or prospective vendors that comply with the requirements of Section 12K.4; and the Contract is for a service, project, or property that is essential to the City or the public; or
(4) The contracting City department determines that the public interest warrants the granting of a waiver because application of Section 12K.4 would have an adverse impact on services or a substantial adverse financial impact on the City; or
(5) The contracting City department determines that the services to be purchased are available under a bulk purchasing arrangement with a federal, state, or local governmental entity or a group purchasing organization; purchase under such arrangement will substantially reduce the City’s cost of purchasing such services; and purchase under such an arrangement is in the best interest of the City; or
(6) The contracting City department determines that the requirements of Section 12K.4 will violate or are inconsistent with the terms or conditions of a grant, subvention, or agreement with a public agency or the instructions of an authorized representative of any such agency with respect to any such grant, subvention, or agreement, provided that the contracting officer has made a good faith attempt to change the terms or conditions of any such grant, subvention, or agreement to authorize application of this Section.
(b) The General Manager of the Public Utilities Commission may waive the requirements of Section 12K.4 where the Contractor is providing wholesale or bulk water, power, or natural gas, the conveyance or transmission of same, or ancillary services such as spinning reserve, voltage control, or loading scheduling, as required for assuring reliable services in accordance with good utility practice, to or on behalf of the San Francisco Public Utilities Commission; provided that the purchase of same may not practically be accomplished through the City’s standard competitive bidding procedures; and further provided that this waiver provision shall not apply to Contractors or franchisees providing direct, retail services to end users within the City.
(c) For any determination of nonapplicability, exception, or waiver pursuant to subsections (a) and (b), the contracting City department shall maintain a record documenting the basis for such decision. Each contracting City department that makes a determination of nonapplicability, exception, or waiver pursuant to subsections (a) and (b) shall submit a report to the City Administrator summarizing the Contract and the basis for inapplicability. Such reports shall be submitted annually within 30 days of the end of the fiscal year.
(Former Sec. 12K.5 added as Sec. 12K.4 by Ord. 128-98, App. 4/13/98; renumbered and amended by Ord. 325-00, File No. 001920, App. 12/28/2000; Ord. 16-03, File No. 021853, App 2/7/2003; redesignated as Sec. 33A.5 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
Employers shall post the notice described in Police Code Section 3300J.5(a) in a conspicuous place at every workplace, job site, or other location on City property, under the Employer’s control and frequently visited by their employees or Applicants, and shall send a copy of this notice to each labor union or representative of workers with which the Employer has a collective bargaining agreement or other agreement or understanding, that is applicable to employees in the City or on City property. The notice shall be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted.
(Former Sec. 12K.6 added as Sec. 12K.5 by Ord. 128-98, App. 4/13/98; renumbered by Ord. 325-00, File No. 001920, App. 12/28/2000; redesignated as Sec. 33A.6 by Ord. 142-17, File No. 170350, App. 7/19/2017, Eff. 8/18/2017, Oper. 7/1/2018)
(a) The OLSE is authorized to take appropriate steps to enforce and coordinate enforcement of this Chapter 12K, including the investigation of possible violations of this Chapter.
(b) An employee or Applicant may report to the OLSE any suspected violation of this Chapter. The OLSE shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation; provided, however, that with the authorization of such person, the OLSE may disclose his or her name and identifying information as necessary to enforce this Chapter or for other appropriate purposes.
(c) A Contractor or Subcontractor shall be deemed to have breached the provisions of this Chapter upon a finding by the OLSE that the Contractor or Subcontractor has willfully violated these provisions, provided, however, that for a first violation, or for any violation during the first 12 months following the operative date of this Chapter, the OLSE must issue warnings and notices to correct, and offer the Contractor or Subcontractor technical assistance on how to comply with the requirements of this Chapter.
(d) Upon a subsequent finding of a violation of this Chapter, the awarding authority shall notify the Contractor or Subcontractor that unless the Contractor or Subcontractor demonstrates to the satisfaction of the OLSE within such reasonable period as the OLSE shall determine, that the violation has been corrected, action will be taken as set forth in subparagraphs (e) through (i) hereof.
(e) The Director of the OLSE shall establish rules governing the administrative process for determining and appealing violations of this Chapter. The rules shall include procedures for:
(1) Providing the Contractor or Subcontractor with notice that it may have violated this Chapter;
(2) Providing the Contractor or Subcontractor with a right to respond to the notice;
(3) Providing the Contractor or Subcontractor with notice of the OLSE’s determination of a violation; and,
(4) Providing the Contractor with an opportunity to appeal the OLSE’s determination to a hearing officer, who is appointed by the City Controller or his or her designee.
(f) If there is an appeal of the OLSE’s determination of a violation, the hearing before the hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any such hearing, the OLSE’s determination of a violation shall be considered prima facie evidence of a violation, and the Contractor or Subcontractor shall have the burden of proving, by a preponderance of the evidence, that the OLSE’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final decision.
(g) For a second violation, the awarding authority may deduct from the amount payable to the Contractor or Subcontractor by the City under any Contract subject to this Chapter, or the OLSE may impose upon the Contractor or Subcontractor, a penalty of $50 for each employee, applicant or other person as to whom the violation occurred or continued. Thereafter, for subsequent violations, the penalty may increase to no more than $100, for each employee or applicant whose rights were, or continue to be, violated.
(h) In addition to any other penalties provided for the violation of this Chapter, the Contract or Property Contract may be terminated or suspended, in whole or in part, by the awarding authority upon the basis of a finding under this Section 12K.7 that the Contractor or Subcontractor has violated the provisions of this Chapter, and all moneys due or to become due hereunder may be forfeited to, and retained by, the City.
(i) A violation of the provisions of this Chapter during the performance of a Contract or Property Contract shall be deemed by the City to be a material breach of contract and may provide a basis for determination by the awarding authority that the Contractor or Subcontractor is an irresponsible bidder subject to debarment procedures set forth in Chapter 28.
(j) Nothing contained in this Chapter shall be construed in any manner so as to prevent the City from pursuing any other remedies that may be available at law, equity or under any Contract or Property Contract.
(k) The Director of OLSE shall have authority to adopt regulations or guidelines that implement the provisions of this Chapter. Regulations or guidelines shall be adopted only after consultation with the Director of the Office of Contract Administration.
(l) OLSE shall maintain a record of the number and types of complaints it receives alleging a violation of this Chapter, and the resolution of those complaints. This information shall be compiled on an annual calendar year basis and reported to the Board of Supervisors by January 31 of each year.
In enacting and implementing this Chapter 12K, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
If any section, subsection, sentence, clause, phrase, or word of this Chapter 12K, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Chapter. The Board of Supervisors hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this ordinance or application thereof would be subsequently declared invalid or unconstitutional.