(a) The Agency is authorized to implement and enforce this Article 13 and may promulgate guidelines or rules for such purposes. Any rules promulgated by the Agency shall have the force and effect of law and may be relied on by Employers, Employees, and other persons to determine their rights and responsibilities under this Article.
(b) An Employee or any other person, who has reason to believe that a violation of this Article 13 has occurred may report the suspected violation to the Agency. The Agency shall encourage such reporting by keeping confidential, to the maximum extent permitted by law, the name and other identifying information of the individual reporting the suspected violation; provided, however, that with the authorization of the reporting individual, the Agency may disclose the name of the reporting individual and identifying information as necessary to enforce this Article or for other lawful purposes.
(c) The Agency may investigate possible violations of this Article 13.
(1) 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.
(2) Where, following an investigation that affords due process, including notice of the alleged violation and the right to respond, the Agency determines that a violation has occurred, the Agency may issue a determination of violation and order any appropriate relief.
(A) If any Public Health Emergency Leave was unlawfully withheld, the dollar amount of paid leave withheld from the Employee multiplied by three, or $500, whichever amount is greater, shall be awarded as an administrative penalty paid to the Employee, pursuant to California Constitution Article XIIIC, Section 1(e)(5).
(B) For violation of Section 13.6, the Agency shall award appropriate restitution to each person subjected to the violation, including but not limited to reinstatement and back pay.
(C) Pursuant to California Constitution Article XIIIC, Section 1(e)(5), the Agency may order administrative penalties of $500 for each of the following violations: failure to post notice pursuant to Section 13.5, violation of Section 13.6, refusing to allow access to records pursuant to Section 13.7, failure to maintain or retain accurate and adequate records pursuant to Section 13.7, and any other violation not specified in this Section 13.8(c)(2). These penalties shall be increased cumulatively by 50% for each subsequent violation of the same provision by the same Employer within a three-year period.
(D) To compensate the City for the reasonable regulatory costs of investigating and remedying the violation, pursuant to California Constitution Article XIIIC, Section 1(e)(3), the Agency may also order the Employer to pay to the City an amount that does not exceed its investigation and administrative enforcement costs.
(3) The determination of violation shall provide notice to the Employer of the right to appeal the determination to the City Controller and that failure to do so within 15 days shall result in the determination becoming a final administrative decision, which the City may seek to enforce as a judgment in superior court.
(4) The determination of violation shall specify a reasonable time period for payment of any relief ordered. The Agency may award interest on all amounts due and unpaid at the expiration of such time period at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, as may be amended from time to time.
(5) The remedies and penalties provided under subsection (c)(2) above are cumulative.
(6) The Agency may require that remedies and penalties due and owing to Employees be paid directly to the City for disbursement to the Employees. The Controller shall hold these funds in escrow for the Employees. The Agency shall make best efforts to distribute such funds to Employees. In the event such funds are unclaimed for a period of three years, the Controller may undertake administrative procedures for escheat of unclaimed funds under California Government Code Section 50050, et seq., as may be amended from time to time. Such escheated funds shall be dedicated to the enforcement of this Article 13 or other laws the Agency enforces.
(d) Appeal Procedure. An appeal from a determination of violation (“Appeal”) may be filed by the Appellant in accordance with the following procedures:
(1) The Appellant shall file the Appeal with the City Controller and serve a copy on the Agency. The Appeal shall be filed in writing within 15 days of the date of service of the determination of violation, and shall specify the basis for the Appeal and shall request that the Controller appoint a hearing officer to hear and decide the Appeal. Failure to submit a timely, written Appeal shall constitute concession to the violation, and the determination of violation shall be deemed the final administrative decision upon expiration of the 15-day period. Further, failure to submit a timely, written Appeal shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought against the City regarding the determination of violation.
(2) Following the filing of the Appeal and service of a copy on the Agency, the Agency shall promptly afford Appellant an opportunity to meet and confer in good faith regarding possible resolution of the Determination of Violation.
(3) Within 30 days of receiving an Appeal, the Controller shall appoint an impartial hearing officer who is not part of the Agency and immediately notify the Agency and Appellant of the appointment.
(4) The hearing officer shall promptly set a date for a hearing. The hearing must commence within 45 days of the date of the Controller’s notice of appointment of the hearing officer, and conclude within 75 days of such notice, provided, however, that the hearing officer may extend these time limits upon a determination of good cause.
(5) The hearing officer shall conduct a fair and impartial evidentiary hearing. The Agency shall have the burden of proof in such hearing.
(6) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the determination of violation. The hearing officer’s decision shall be the final administrative decision. The decision shall consist of findings, a determination, any relief ordered, a reasonable time period for payment of any relief ordered, and notice to the Employer of the right to appeal by filing a petition for a writ of mandate in San Francisco Superior Court under California Code of Civil Procedure, Section 1094.5, et seq., as may be amended from time to time, and that failure to file a timely appeal shall result in the final administrative decision becoming enforceable as a judgment by the superior court.
(7) Appellant may appeal the final administrative decision only by filing in San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure, Section 1094.5, et seq., as applicable, and as may be amended from time to time.
(e) 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 as a judgment in superior court, and/or 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 Employer until such time as the violation is remedied.
(Added as Police Code Sec. 3300P.8 by Proposition G, 6/7/2022, Eff. 7/10/2022, Oper. 10/1/2022; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)