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(a) More than two million domestic workers in the United States, and approximately 10,000 in San Francisco, work in the homes of their employers, cooking; cleaning; caring for children, older adults, people with disabilities, and others; and performing other labor.
(b) Domestic workers generally are paid low wages, are unlikely to receive health benefits or paid time off from employers, and are at high risk of wage theft and other violations of worker protections. This vulnerability is long-standing and has deep historic, economic, and social roots in racism and sexism. Domestic workers remain uniquely vulnerable, in part because they generally work in isolation, behind the closed doors of private homes.
(c) In 2006, the people of the City and County of San Francisco (“City”) enacted the nation’s first Paid Sick Leave Ordinance (PSLO), covering employees working in the City. Paid sick leave (PSL) is an important public health tool for infectious disease control, as workers without it are more likely to place others at risk by going to work sick or sending their children to school or daycare while ill.
(d) Despite the PSLO, few domestic workers in the City have access to PSL. Only 17% of domestic workers in San Francisco surveyed by researchers from the Graduate Center at the City University of New York reported that they receive any paid time off as an employment benefit. Only 33% of those domestic workers reported that they had had even one paid day off during the previous year, whether for sick leave, vacation, or a paid holiday. See Isaac Jabola-Carolus, “Profile of San Francisco Domestic Workers,” December 2020, on file with the Clerk of the Board of Supervisors in File No. _____.
(e) The COVID-19 pandemic has highlighted the urgency of ensuring that all workers have access to PSL for illness, caregiving responsibilities, and other purposes. This is particularly true for low-wage workers, like domestic workers, who may be unlikely to have adequate resources to take unpaid time off when ill or when caring for an ill family member. The COVID-19 pandemic has further increased both the economic vulnerabilities of domestic workers. Domestic workers have suffered disproportionate job losses due to the COVID-19 pandemic and public health response, peaking as high as 60% in May 2020. See the foregoing “Profile of San Francisco Domestic Workers.” But domestic workers are less likely than other workers to have access to unemployment insurance due to misclassification, informal employment arrangements, and immigration status.
(f) Domestic workers are at heightened risk of contracting COVID-19 and other infectious diseases because they typically work indoors, often in close proximity to their employers and those for whom they provide care. Domestic workers frequently work for multiple different individuals or families, increasing their exposure risk. Domestic workers generally are not protected by the federal Occupational Safety and Health Act or its California counterpart, and they are unlikely to be provided with personal protective equipment or other COVID-19 safety measures.
(g) Employers of domestic workers that wish to provide the workers with PSL often lack access to systems to facilitate accrual and tracking of benefits. For domestic workers who work for multiple employers for varying lengths of time, PSL that does not allow for aggregation across employers may not provide workers meaningful access to PSL. Misclassification of employees as independent contractors and informal employment arrangements further reduce domestic workers’ access to PSL.
(h) This Article 12 establishes a portable PSL system, which will allow Domestic Workers to earn and consolidate PSL benefits from several employers and to keep and access that paid leave as they move between jobs. The system would allow Hiring Entities to track PSL accruals, which would be transferred from the Hiring Entity to the Domestic Worker when the Domestic Worker needs to take PSL. PSL would not necessarily be used with the same Hiring Entity or Hiring Entities from which the funds are drawn.
(i) The purpose of this Article 12 is to provide Domestic Workers in the City access to the essential benefit of PSL, administered through the portable PSL system. By expanding access to PSL, this Article is intended to mitigate the economic harm Domestic Workers are suffering due to the pandemic, support the City’s pandemic response, and improve public health more broadly.
For purposes of this Article 12, the following definitions apply.
“Agency” means the Office of Labor Standards Enforcement.
“City” means the City and County of San Francisco.
“Domestic Worker” means an individual who is employed by or contracts with a Hiring Entity to provide labor or services in a residence caring for a child; serving as a companion or providing other non-medical care or services for a sick, convalescing, disabled, or senior person; cleaning, cooking, providing food or butler service, gardening, personal organizing, or performing other in-home personal or domestic service. Domestic Worker includes an individual who as part of the individual’s employment or other work contract resides in the personal residence of the Hiring Entity.
Notwithstanding the foregoing definition, Domestic Worker does not include:
(a) An individual providing labor or services for a family member, meaning a spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, parent-in-law, child-in-law, stepparent, stepchild, stepsibling, or half-sibling, whether the individual is related by blood, marriage, or adoption;
(b) An individual primarily engaged in house sitting, pet sitting, or dog walking;
(c) An individual working at a business operated primarily out of the person’s own residence, such as a home day-care business;
(d) An individual whose primary work involves household repair or maintenance, such as a roofer, plumber, mason, painter, or other similar contractor;
(e) A home health care worker for work that is paid through public funds, such as a home health care worker while paid through Medicaid or Medicare;
(f) An individual under 18 years of age; or
(g) An individual who does not regularly perform work for the Hiring Entity. An individual who performs an average of five hours or more per month shall be presumed to be a Domestic Worker.
“Hiring Entity” means any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs, contracts with, or hires a Domestic Worker.
“Implementation Date” means one year after the effective date of the ordinance in Board File No. 211132 establishing this Article 12.
“OEWD” means the Office of Economic and Workforce Development.
“PSL” means paid sick leave.
(a) By the Implementation Date, OEWD shall develop and implement the portable PSL system.
(b) Planning phase.
(1) OEWD shall seek input and recommendations from Domestic Workers, Hiring Entities, other community partners, and City Departments on the PSL system, including platform for and features of the system and its operational requirements.
(2) Not later than six months after the effective date of this Article 12, OEWD shall submit to the Board of Supervisors a plan for developing and administering the PSL system, which shall address system development; organization and management, including whether OEWD intends to select a third-party PLS system administrator; and funding requirements, and which may include legislative recommendations. Subject to the budgetary and civil service provisions of the Charter, OEWD may delegate or assign functions of the development and implementation of the portable PSL system to a third-party administrator.
(3) During the remainder of the one-year planning phase, OEWD shall develop the PSL system, in conjunction with a third-party PSL system administrator if applicable.
(c) The portable PSL system shall perform the following functions:
(1) Tracking each Domestic Worker’s hours worked for a Hiring Entity and net pay rates, and calculating the accrued right to PSL funds from such information;
(2) When PSL funds are requested, coordinating the transfer of funds to a Domestic Worker who has accrued the right to PSL contributions from one or more Hiring Entities from which the right to PSL funds have accrued, in the order the right to PSL funds accrued.
(d) The portable PSL system shall be designed and administered to minimize administrative burdens for the Hiring Entity and Domestic Worker.
(e) The portable PSL system administrator may seek relevant background information from the Domestic Worker and the Hiring Entity for the purpose of coordinating the transfer of funds from a Hiring Entity to a Domestic Worker. All information provided to or retained in the portable PSL system shall be confidential to the extent permitted by law, provided however, that such information may be shared with 1) a financial institution facilitating payments by the PSL system to the extent legally required and 2) the Agency to the extent needed to implement, administer, and enforce this Article 12. Such financial institutions and the Agency shall maintain the confidentiality of such information to the extent permitted by law.
(a) Except as provided in subsection (e) or in any exception created by rule under Section 12.8, and without regard to the employment classification of the Domestic Worker, a Hiring Entity shall provide PSL funds to a Domestic Worker. The right to PSL funds shall be accounted for in the portable PSL system established under Section 12.4, and the PSL system shall coordinate the transfer of funds from a Hiring Entity to a Domestic Worker when a Domestic Worker requests accrued PSL funds.
(b) A Domestic Worker shall accrue a right to PSL funds under subsection (a) equal to not less than one hour of net pay, at the Domestic Worker’s regular rate of pay, for every 30 hours of work for the Hiring Entity performed on or after the Implementation Date. The Hiring Entity shall report the number of hours of work and net pay rate of a Domestic Worker to the PSL system. The Domestic Worker shall report the number of hours of work, net pay rate, and relevant contact information of the Hiring Entity. The information provided by the Hiring Entity and Domestic Worker to the portable PSL system administrator shall be retained, used to calculate a Domestic Worker’s right to PSL funds from a Hiring Entity, and used to coordinate the transfer of such PSL funds from the Hiring Entity to the Domestic Worker.
(c) The right to PSL funds shall accrue in hour-unit increments, but the funds shall not be transferred from the Hiring Entity to the Domestic Worker until the Domestic Worker requests the PSL funds. A Hiring Entity is responsible for fulfilling any tax withholding and tax reporting obligations for such contributions at the time PSL funds are transferred.
(d) A Hiring Entity may cap accrual of the right to PSL contributions for a Domestic Worker at 40 hours of PSL, provided however that a Hiring Entity that is an Employer under Labor and Employment Code Section 11.2(d) and not a “Small business” under Labor and Employment Code Section 11.2(f) may cap accrual of the right to PSL contributions for a Domestic Worker at 72 hours of PSL. The right to PSL contributions carries over from year to year (whether calendar year or fiscal year).
(f) If a Hiring Entity directly provides a Domestic Worker PSL, including but not limited to PSL under Labor and Employment Code Article 11, the Hiring Entity may offset that paid leave from the PSL funds it must provide a Domestic Worker under subsections (a) and (b). A Hiring Entity that provides at least one hour of PSL for every 30 hours of work shall be exempt from all provisions of this Article 12, except for the requirements of Section 12.8(d).
(g) If a Hiring Entity that is an “Employer” under Labor and Employment Code Section 11.2(d) complies with this Article 12, the Employer shall be deemed to comply with Labor and Employment Code Article 11.
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