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(a) It shall be unlawful for an Employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Article 32.
(b) It shall be unlawful for an Employer to discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of Caregiver status or in retaliation for exercising rights protected under this Article 32. Such rights include but are not limited to:
(1) the right to a Flexible or Predictable Working Arrangement under this Article;
(2) the right to request reconsideration of the denial of a request for a Flexible or Predictable Working Arrangement under this Article;
(3) the right to file a complaint with the Agency alleging a violation of any provision of this Article;
(4) the right to inform any person about an Employer’s alleged violation of this Article;
(5) the right to cooperate with the Agency or other persons in the investigation or prosecution of any alleged violation of this Article;
(6) the right to oppose any policy, practice, or act that is unlawful under this Article; or
(7) the right to inform any person of his or her rights under this Article.
(Added as Administrative Code Sec. 12Z.7 by Ord. 209-13, File No. 130785, App. 10/9/2013, Eff. 11/8/2013, Oper. 1/1/2014; amended by Ord. 39-22, File No. 211296, App. 3/14/2022, Eff. 4/14/2022, Oper. 7/13/2022; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(a) The Agency shall, by the operative date of this Article, publish and make available to Employers, in all languages spoken by more than 5% of the San Francisco workforce, a notice suitable for posting by Employers in the workplace informing Employees of their rights under this Article. The Agency shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco workforce. In its discretion, the Agency may combine the notice required herein with the notice required by Section 1.5(a) and/or 11.5(a) of the Labor and Employment Code or any other Agency notice that Employers are required to post in the workplace.
(b) Every Employer shall post in a conspicuous place at any workplace or job site where any Employee works the notice required by subsection (a). Every Employer shall post this notice in English, Spanish, Chinese, and any language spoken by at least 5% of the Employees at the workplace or job site.
Employers shall retain documentation required under this Article for a period of three years from the date of the request for a Flexible or Predictable Working Arrangement, and shall allow the Agency access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Article. When an issue arises as to an alleged violation of an Employee’s rights under this Article, if the Employer has failed to maintain or retain documentation required under this Article, or does not allow the Agency reasonable access to such records, it shall be presumed that the Employer has violated this Article, absent clear and convincing evidence otherwise.
(a) Administrative Enforcement.
(1) The Agency is authorized to take appropriate steps to enforce this Article 32 and coordinate enforcement of this Article. The Agency may investigate possible violations of this Article. Where the Agency has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing.
(2) Where the Agency determines that a violation has occurred, it may issue a determination and order any appropriate relief. The Agency may impose an administrative penalty, under California Constitution Article XIIIC, Section 1(e)(5), requiring the Employer to pay to each Employee or person whose rights under this Article were violated up to $50 for each day or portion thereof that the violation occurred or continued, or up to the cost of care the Employee or person whose rights were violated incurred due to the violation, if greater.
(3) Where prompt compliance is not forthcoming, the Agency may take any appropriate enforcement action to secure compliance, including initiating a civil action pursuant to Section 32.10(b). In order to compensate the City for the costs of investigating and remedying the violation, and to further penalize the violating Employer, the Agency may also order the violating Employer or person to pay to the City, under California Constitution Article XIIIC, Section 1(e)(5), a sum of not more than $50 for each day or portion thereof and for each Employee or person as to whom the violation occurred or continued, or up to the City’s costs for the investigation and remedying of the violation, if greater. Such funds shall be allocated to the Agency and used to offset the costs of implementing and enforcing this Article 32 and other ordinances the Agency enforces.
(4) An Employee or other person may report to the Agency any suspected violation of this Article, but if an Employee is reporting a violation pertaining to that Employee’s own request for Flexible or Predictable Working Arrangement, that Employee must first have submitted a request for reconsideration to the Employer under Section 32.6. The Agency 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 Agency may disclose the person’s name and identifying information as necessary to enforce this Article or for other appropriate purposes. The filing of a report of a suspected violation by an Employee does not create any right of appeal to the Agency by the Employee; based on its sole discretion, the Agency may decide whether to investigate or pursue a violation of this Article.
(5) In accordance with the procedures described in Section 32.14, the Director shall establish rules governing the administrative process for determining and appealing violations of this Article. The rules shall include procedures for:
(A) providing the Employer with notice that it may have violated this Article;
(B) providing the Employer with a right to respond to the notice;
(C) providing the Employer with notice of the Agency’s determination of a violation, which shall specify a reasonable time period for payment of any relief ordered; and
(D) providing the Employer with an opportunity to appeal the Agency’s determination to a hearing officer, not employed by the Agency, who is appointed by the Controller or the Controller’s designee.
(6) If there is no appeal of the Agency’s determination of a violation, that determination shall constitute the City’s final administrative decision. An Employer’s failure to appeal the Agency’s determination of a violation shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought by the Employer against the City regarding the Agency’s determination of a violation.
(7) If there is an appeal of the Agency’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 Agency’s determination of a violation shall be considered prima facie evidence of a violation, and the Employer shall have the burden of proving, by a preponderance of the evidence, that the Agency’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final administrative decision. The sole means of review of the City’s final decision, rendered by the hearing officer, shall be by filing in the San Francisco Superior Court a petition for writ of mandate under Section 1094.5 of the California Code of Civil Procedure. The Agency shall notify the Employer of this right of review after issuance of the City’s final administrative decision by the hearing officer.
(b) Civil Enforcement. Where an Employer fails to comply with a final administrative decision within the time period required therein, the Agency may take any appropriate enforcement action to secure compliance, including referring the action to the City Attorney to seek to enforce the final administrative decision in a court of law or equity and, except where prohibited by State or Federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the Covered Employer until such time as the violation is remedied. Upon prevailing in a civil action, the City shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, but not limited to: reinstatement of an Employee; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $50 to each Employee or person whose rights under this Article 32 were violated for each day such violation continued or was permitted to continue, or up to the cost of care the Employee or person whose rights were violated incurred due to the violation, if greater; appropriate injunctive relief; and, further, shall be awarded reasonable attorneys’ fees and costs.
(c) Interest. In any administrative or civil action brought under this Article 32, the Agency or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code.
(d) Remedies Cumulative. The remedies, penalties, and procedures provided under this Article 32 are cumulative.
(Added as Administrative Code Sec. 12Z.10 by Ord. 209-13, File No. 130785, App. 10/9/2013, Eff. 11/8/2013, Oper. 1/1/2014; amended by Ord. 39-22, File No. 211296, App. 3/14/2022, Eff. 4/14/2022, Oper. 7/13/2022; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(a) An appointing officer may request an exemption from this Article from the Director of Human Resources for certain classifications of City employees working in public health or public safety functions, based upon operational requirements according to criteria developed by the Director of Human Resources. Such criteria shall promote efficiency and advance public safety or public health.
(b) The Agency, in consultation with the Director of Human Resources, may exempt non-City Employees working in public safety or public health functions, upon request of those non-City Employers, based upon operational requirements according to criteria developed by the Agency and the Director of Human Resources. Such criteria shall promote efficiency and advance public safety or public health.
All and any portions of the applicable requirements of this Article shall not apply to Employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.
This Article provides minimum employment requirements pertaining to Caregivers and Employees and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard, or provision of a collective bargaining agreement, that provides for greater or other rights of or protections for Caregivers or Employees, or that extends other rights or protections to Employees.
The Director shall have authority to issue regulations or develop guidelines that implement provisions of this Article. Notwithstanding the definition of “Director” in this Article, a designee of the Director shall not have authority under the foregoing sentence of this Section; but a designee of the Director shall have authority to conduct hearings leading to the adoption of regulations or guidelines.
The Department on the Status of Women and the Office of Labor Standards Enforcement shall jointly create an outreach and community engagement program to educate and provide technical support to Employees and Employers about their rights and obligations under this Article. This outreach program shall be conducted in multiple languages to the extent feasible and shall include media, trainings and materials accessible to the diversity of Employees and Employers in San Francisco.
(Added as Administrative Code Sec. 12Z.15 by Ord. 209-13 File No. 130785, App. 10/9/2013, Eff. 11/8/2013, Oper. 1/1/2014; amended by Ord. 39-22, File No. 211296, App. 3/14/2022, Eff. 4/14/2022, Oper. 7/13/2022; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
Nothing in this Article shall be interpreted or applied so as to create any requirement, power, or duty in conflict with federal or state law.
In enacting and implementing this Article, the City is assuming an undertaking only to promote the general welfare. The City 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. This Article does not create a legally enforceable right against the City.
If any of the parts or provisions of this Article (including sections, subsections, sentences, clauses, phrases, words, numbers) or the application thereof to any person or circumstance is held invalid or unconstitutional by a decision of a court of competent jurisdiction, the remainder of this Article, including the application of such part or provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Article are severable.