Sec. 14.1. Title.
Sec. 14.2. Findings.
Sec. 14.3. Definitions.
Sec. 14.4. Supplemental Paid Parental Leave.
Sec. 14.5. Notice and Posting.
Sec. 14.6. Employer Records.
Sec. 14.7. Exercise of Rights Protected; Retaliation Prohibited.
Sec. 14.8. Implementation and Enforcement.
Sec. 14.9. Waiver through Collective Bargaining.
Sec. 14.10. Other Legal Requirements.
Sec. 14.11. Undertaking for the General Welfare.
Sec. 14.12. Severability.
Sec. 14.13. No Conflict with Federal or State Law.
Sec. 14.14. Expiration of Article.
Sec. 14.15. Change in Federal Law.
*Editor’s Note:
Former Police Code Article 33H (“Paid Parental Leave”) was redesignated as Labor and Employment Code Article 14 by Ord. 221-23, File No. 230835, approved November 3, 2023, effective December 4, 2023, and operative January 4, 2024.
This Article 14 shall be known as the “Paid Parental Leave Ordinance.”
(a) In 2004, California became the first state in the United States to create a family leave insurance program (referred to herein as “California Paid Family Leave”) that provides partial wage replacement to eligible employees on leave for family caregiving or bonding with a new child. Under the program, codified at Unemployment Insurance Code Section 3300 et seq., employees who contribute to the California State Disability Insurance (SDI) fund are entitled to six weeks of partial pay each year while taking time off from work to bond with a newborn baby, newly adopted child, or new foster child, or to care for a seriously ill family member.
(b) As of January 2016, workers eligible for California Paid Family Leave can take up to six weeks of paid time off at 55% of their weekly wages up to a maximum weekly benefit amount to bond with a new child or care for a seriously ill family member. The weekly benefit amount is determined by using the employee’s highest-earning calendar quarter during an approximately 12-month base period. As of January 2016, the maximum weekly benefit amount is $1,129. To qualify for this maximum weekly benefit amount, an individual must earn at least $26,070.92 in a calendar quarter during the base period. In April 2016, the State Legislature enacted legislation that will increase the wage replacement rate to 70% for lower-income workers and 60% for higher-income workers, for periods of leave commencing after January 1, 2018 but before January 1, 2022.
(c) California Paid Family Leave is available to nearly all private sector workers who pay into the SDI program, either through payroll deductions or voluntarily.
(d) Through 2014, approximately 1.8 million California Paid Family Leave claims were approved by the State of California Employment Development Department (“EDD”) for a total of $4.6 billion in payments. According to EDD, approximately 90% of claims are for bonding with a new child.
(e) Babies whose mothers work during the first three months of the baby’s life are less likely to be breastfed, taken to the doctor for well-baby visits, or be up to-date on immunizations. According to a 2015 study, rates of breastfeeding through infancy in California increased by 10-20 percentage points after development of the California Paid Family Leave program.
(f) Experts have found that it takes at least several months for a pattern of interaction to begin to develop between parent and child where they recognize and learn to respond to each other’s distinct cues. Short-changing this time for parents to learn to be responsive caregivers may have impacts for children’s cognitive as well as social and emotional development.
(g) A 2012 survey by the U.S. Department of Labor found that the main reason employees in the United States do not take unpaid leave under the federal Family Medical Leave Act is that they cannot afford to take it. Further, studies show that low-wage workers in particular would benefit from expanded paid family leave policies.
(h) According to a 2014 report by the California Senate Office of Research, the number of California Paid Family Leave claims filed by individuals in the lowest income bracket consistently is much smaller than the number filed by those in the highest income bracket, and claims in the two lowest income brackets decreased gradually over the prior nine years. Numerous factors may contribute to this declining participation rate, including the current California Paid Family Leave wage-replacement rate of 55%, which may provide insufficient income, particularly for low-income households.
(i) This Article 14 is intended to supplement the California Paid Family Leave partial wage replacement by providing compensation that, in combination with the California Paid Family Leave payment, will total 100% of an employee’s weekly salary, subject to a weekly maximum benefit amount, to help ensure that concern over loss of income does not preclude parents in San Francisco from bonding with their new child.
For purposes of this Article 14, the following definitions apply:
“Agency” means the Office of Labor Standards Enforcement or any successor department or office.
“California Paid Family Leave” means the State of California’s partial wage replacement insurance plan for paid family leave codified at California Unemployment Insurance Code, Division 1, Part 2, Chapter 7 (commencing with Section 3300), as that law may be amended from time to time with respect to eligibility for, duration of, or amount of paid family leave compensation, or any other matter pertaining to paid family leave under that law.
“City” means the City and County of San Francisco.
“Covered Employee” means any person, including but not limited to part-time and temporary employees, who is employed by a Covered Employer (1) who commenced employment with the Covered Employer at least 180 days prior to the start of the leave period, (2) who performs at least eight hours of work per week for the employer within the geographic boundaries of the City, (3) at least 40% of whose total weekly hours worked for the employer are within the geographic boundaries of the City, and (4) who is eligible to receive paid family leave compensation from the State of California under the California Paid Family Leave law for the purpose of bonding with a new child. Where a person’s weekly work hours fluctuate from week to week, the Agency shall determine whether the person meets the eight-hour and/or 40% threshold requirements in the preceding sentence by using an average of the person’s weekly hours worked for the Covered Employer during the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods immediately preceding the start of the person’s California Paid Family Leave period. If the person was on leave during any of the aforementioned pay periods, such pay period(s) shall not be counted towards the average referenced in the preceding sentence; rather, the Agency shall consider additional earlier corresponding pay periods for that person in order to satisfy the above designated number of pay periods, but in no case shall the Agency, in calculating the average, consider pay periods earlier than 26 weeks prior to the California Paid Family Leave period.
“Covered Employer” 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 or exercises control over the wages, hours, or working conditions of an employee and who regularly employs the following number of employees, regardless of location: (1) commencing with January 1, 2017, 50 or more employees; (2) commencing with July 1, 2017, 35 or more employees; and (3) commencing with January 1, 2018, 20 or more employees. Covered Employer shall not include the City or any other governmental entity.
“New Child Bonding” means bonding with the Covered Employee’s minor child during the first year after the birth of the child or after placement of the child with the Covered Employee through foster care or adoption, per Section 3301 of the California Unemployment Insurance Code.
“State” means the State of California, including the State of California Employment Development Department.
“Supplemental Compensation” means a Covered Employer’s obligation to pay a Covered Employee’s partial weekly salary in accordance with Section 14.4.
(a) Applicability. This Article 14 applies to Covered Employees who receive California Paid Family Leave benefits for the purpose of New Child Bonding.
(b) Supplemental Compensation.
(1) General.
(A) Except as stated in subsection (b)(2), when a Covered Employee receives California Paid Family Leave compensation for the purpose of New Child Bonding, a Covered Employer shall supplement the California Paid Family Leave weekly benefit amount that the employee receives by paying the employee Supplemental Compensation in an amount such that the total of the California Paid Family Leave compensation the employee receives and the Supplemental Compensation provides, but does not exceed, 100% of the employee’s current normal gross weekly wage.
(B) If the Covered Employee’s weekly wage fluctuates, the employee’s normal gross weekly wage shall be calculated based on an average of the employee’s weekly earnings from the Covered Employer during the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods immediately preceding the start of the employee’s California Paid Family Leave period. If the employee was on unpaid or partially paid leave during any of the aforementioned pay periods, such pay period(s) shall not be counted towards the average referenced in the preceding sentence; rather, the average shall be calculated using additional earlier corresponding pay periods in order to satisfy the above designated number of pay periods, but in no case shall pay periods earlier than 26 weeks prior to the California Paid Family Leave period be considered.
(C) If the California Paid Family Leave weekly benefit amount that the Covered Employee is receiving from the State is based on earnings from a calendar quarter during which the employee did not work for the Covered Employer, or during which the employee earned a higher weekly wage from the Covered Employer than the employee is receiving at the time of his or her leave, the Supplemental Compensation amount shall be calculated to provide 100% of the employee’s normal gross weekly wage in his or her current position; provided, however, that reducing a Covered Employee’s wages during the leave period or within 90 days of the employee’s having notified the Covered Employer of his or her intent to apply for and/or use California Paid Family Leave shall raise a rebuttable presumption that such wage reduction was made to reduce the Covered Employer’s Supplemental Compensation obligations under this Section 14.4. Unless the Covered Employer rebuts the presumption with clear and convincing evidence that the reduction was solely for a reason other than reducing its obligation to pay Supplemental Compensation, the employer shall be obligated to pay Supplemental Compensation during the leave period based on the employee’s prior wage rate.
(D) Multiple Employers.
(i) Where the Covered Employee works for more than one employer, the Supplemental Compensation amount shall be apportioned between or among the Covered Employers based on the percentage of the Employee’s total gross weekly wages received from each employer. For example, if the Employee earns $800 per week from Covered Employer A, and $200 per week from Covered Employer B for a combined total of $1,000, Employer A shall pay 80% of the Supplemental Compensation amount and Employer B shall pay 20% of the Supplemental Compensation amount. If the Employee’s weekly wage for a given Employer fluctuates, the percentage referenced in this subsection shall be calculated by averaging the employee’s weekly wages earned from the Employer during the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods immediately preceding the leave period. If the employee was on unpaid or partially paid leave during any of the aforementioned pay periods, such pay period(s) shall not be counted towards the average referenced in the preceding sentence; rather, the average shall be calculated using additional earlier corresponding pay periods in order to satisfy the above designated number of pay periods, but in no case shall pay periods earlier than 26 weeks prior to the California Paid Family Leave period be considered.
(ii) In cases where the Covered Employee works for a Covered Employer and a non-Covered Employer, the Covered Employer shall be responsible only for its percentage of the Employee’s total gross weekly wages. For example, if the Employee earns $800 per week from the Covered Employer, and $200 per week from the non-Covered Employer for a combined total of $1,000, the Covered Employer shall pay 80% of the Supplemental Compensation amount and the Non-Covered Employer shall pay nothing. Accordingly, in such cases, the Employee will not receive 100% of the Supplemental Compensation amount.
(iii) In cases of multiple employers, the Covered Employee shall, as a precondition of receiving Supplemental Compensation, provide the Covered Employer(s) with information pertaining to wages received from all employers during the 90 days prior to the leave period on a form prepared by the Agency and signed by the employee under penalty of perjury. A Covered Employee’s failure to comply with this requirement shall relieve the Covered Employer(s) of their obligation to provide the employee with Supplemental Compensation.
(2) Maximum Weekly Benefit Amount. In the case of a Covered Employee who is receiving the maximum weekly benefit amount under the California Paid Family Leave law, the Supplemental Compensation shall not be calculated to reach 100% of the employee’s total normal gross weekly wage. Rather, the amount of Supplemental Compensation shall be calculated based on the gross wage that is derived from dividing the State’s maximum weekly benefit amount by the percentage rate of wage replacement provided under the California Paid Family Leave law.
(3) Termination During Leave Period. A Covered Employer’s obligation to provide Supplemental Compensation under this Section 14.4 applies only when the Covered Employee is receiving California Paid Family Leave benefits for New Child Bonding; provided, however, that if a Covered Employer terminates a Covered Employee during the leave period, the employer’s obligation to pay Supplemental Compensation shall continue for the remainder of the period the Covered Employee is receiving California Paid Family Leave benefits.
(4) Termination Prior to Leave Period. Terminating a Covered Employee prior to the employee’s leave period but within 90 days of the employee’s having notified the Covered Employer of his or her intent to apply for and/or use California Paid Family Leave shall raise a rebuttable presumption that such termination was taken to avoid the Covered Employer’s Supplemental Compensation obligations under this Section 14.4. Unless the Covered Employer rebuts the presumption with clear and convincing evidence that the termination was solely for a reason other than avoidance of its obligation to pay Supplemental Compensation, the employer shall be obligated to pay the terminated employee Supplemental Compensation.
(5) Unused Vacation Leave. To be eligible to receive Supplemental Compensation under this Section 14.4, a Covered Employee must agree to allow a Covered Employer, in the employer’s discretion, to apply up to two weeks of unused vacation leave that the employee has accrued as of the start of the leave period to help meet the employer’s obligation under this Section to provide Supplemental Compensation during the leave period. If the Covered Employee does not agree, the Covered Employer is not required to provide Supplemental Compensation under this Section 14.4, but such lack of agreement shall have no effect on the Employee’s eligibility for California Paid Family Leave benefits or other benefits under the law. The preceding sentence shall not prevent a Covered Employer, in the employer’s discretion, from requiring a Covered Employee to take up to two weeks of earned but unused vacation leave prior to the employee’s initial receipt of California Paid Family Leave compensation as allowed under subsection (c) of Section 3303.1 of the California Unemployment Insurance Code, as amended, in addition to or in lieu of exercising the option provided in the foregoing sentence.
(6) Voluntary Plans. A Covered Employer who has received State approval to pay California Paid Family Leave compensation through a voluntary disability insurance plan in accordance with California Unemployment Insurance Code, Division 1, Part 2, Chapter 6 (commencing with Section 3251) must comply with the Supplemental Compensation requirements of this Section 14.4 either by providing the Supplemental Compensation through the approved voluntary plan or by paying Supplemental Compensation directly to the Covered Employee.
(c) Integration/Coordination of Benefits. In accordance with California Unemployment Insurance Code Section 2656, a Covered Employee who is receiving California Paid Family Leave benefits may not receive Supplemental Compensation under this Article 14 which would result in the employee’s receiving total compensation while on paid parental leave that is greater than the employee’s normal gross weekly wages. As a precondition of receiving Supplemental Compensation, a Covered Employee must either (1) provide the Covered Employer with a copy of the employee’s Notice of Computation of California Paid Family Leave Benefits from the State or other legally authorized statement, or (2) at the time of applying for California Paid Family Leave, provide the State with written authorization to disclose the weekly benefit amount to the employer so that the Covered Employer may request and obtain that information from the State. A Covered Employee’s failure to comply with this requirement shall relieve the Covered Employer of its obligation to provide the employee with Supplemental Compensation.
(d) Existing Paid Parental Leave Policies. This Article 14 does not require a Covered Employer to provide Supplemental Compensation under Section 14.4 to a Covered Employee if the employer’s existing policy provides the employee with fully paid parental leave for at least the number of weeks paid leave is required by the California Paid Family Leave law, as amended from time to time, within any twelve-month period for purposes of New Child Bonding, whether or not such paid leave includes California Paid Family Leave benefits. Unless the Employee elects otherwise, the fully paid parental leave referenced in the prior sentence must be provided as consecutive weeks.
(e) Reimbursement. As a precondition of receiving Supplemental Compensation, a Covered Employee must agree, by signing a form prescribed by the Agency, to reimburse the full amount of Supplemental Compensation received from any Covered Employer(s) if the employee voluntarily separates from employment with the Covered Employer(s) within 90 days of the end of the Employee’s leave period and if the Employer requests such reimbursement in writing.
(Added as Police Code Sec. 3300H.4 by Ord. 54-16, File No. 160065, App. 4/21/2016, Eff. 5/21/2016, Oper. 1/1/2017; amended by Ord. 181-16, File No. 160719, App. 9/14/2016, Eff. 10/14/2016; Ord. 54-20, File No. 191282, App. 4/3/2020, Eff. 5/4/2020; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
Loading...