(a) Over the past few decades, the demographics of the nation’s workforce and the understanding of family structures have undergone and continue to undergo significant changes. These changes include an increased number of women in the workforce; fewer households with children that have at least one parent at home full-time; more single-parent households; increased caregiving responsibilities for both children and older adults; and an expansion of the understanding of what comprises a family unit. As a result of these and other changes, the demands placed on workers with family responsibilities are greater and more complex today than ever before. The global COVID-19 pandemic has placed great strains on caregivers in families, with the impacts felt most dramatically among economically and socially vulnerable populations. As in every American city, San Francisco’s workforce and families have experienced these changes.
(b) A marked change in the workforce, and consequently in families, is the large increase in numbers of women who now work outside the home. In 1960, a married woman was employed in approximately 26% of families. By 2013, when this Article 32 was enacted, approximately 68% of married mothers of minor children worked outside the home. In 2020, approximately 69% of married mothers of minor children worked outside the home. The number of single-parent households has increased substantially, more than doubling over the last 50 years. Today, approximately 25% of households are single-parent. Approximately half of all births to women under age 30 are to single mothers. As a result of these changes in labor force participation and family structures, far fewer households with children have a parent who does not work outside the home.
(c) Americans are living longer than before, and many families have direct caregiving responsibilities for elderly parents or other older relatives. Family members serving this caregiving role face the same work/family pressures as parents with minor children, and when they also have caregiving responsibilities for minor children, their family burdens in effect are compounded. Nationally, more than half of persons who provide unpaid care to an adult or to a child with special needs are employed outside the home, with the large majority of those employees working full time. Approximately 32,000 San Franciscans who work outside the home live with family members 65 years and older. Increasingly, caregivers must care for both their own children and adult family members at the same time—approximately 11 million caregivers known as “sandwich caregivers” care for both a child and an adult family member.
(d) Many employees who live outside city centers have lengthy commutes to their jobs. Traffic patterns during rush hour elongate those commutes. At the same time, some employees, especially those in low-wage jobs, have difficulty reaching their workplaces through public transportation during off-peak shifts that start in the evening or early morning. Commutes of long duration leave less time for employees to balance work and caregiving responsibilities. Further, to the extent rigid employment schedules and the absence of telecommute options for employees contribute to delays attendant to rush-hour traffic, they heighten the tension between work and family responsibilities that so many workers face. Moreover, to the extent flexible working hours and telecommuting options will reduce demands on streets and highways and mass transportation systems during rush hour, San Francisco and the Bay Area will likely benefit from both an environmental and economic standpoint.
(e) An employee’s actual or perceived status as a caregiver can create workplace and pay inequities, which often operate to the detriment of women and their families because of the continuing primary role of women as caregivers in the United States. These problems are most obvious when an employer refuses to hire or promote an employee because of that person’s family or other caregiving responsibilities. But pay inequity may arise even if an employer does not consciously intend to place workers at a disadvantage because of their actual or perceived status as caregivers. For example, employers may perceive mothers as less committed to their work due to stereotypes rather than performance, which may hinder these employees’ career advancement. Employees with caregiving responsibilities may be channeled into or may themselves gravitate toward lower-paying assignments or career paths that they or their employer view as more compatible with family needs. Employees may temporarily drop out of the workforce because there is insufficient workplace flexibility, and when they return to the workforce they may be unable to catch up to the pay rates of employees performing the same or similar work who did not leave. Out-of-pocket caregiving expenses may compound these economic burdens. A 2021 AARP report estimated that unpaid caregivers average more than $7,000 per year in out-of-pocket expenses, such as paying for medical expenses, in-home care, and housing expenses for the person needing care.
(f) The current cultural climate within many businesses idealizes the employee who works full-time and long hours, is available for extra work hours on short notice, and has few if any commitments outside of work that would take precedence over work responsibilities. These values are based in large part on a traditional, gendered division of labor. Historically, men could comply with these idealized worker norms because women performed full-time childcare and domestic duties. Yet, while women’s participation in the paid labor market is now widespread, women continue to take on childcare and household duties, do the lion’s share of housework, provide the majority of physical and emotional care for children, and take time off to care for sick family members and to attend to other family needs.
(g) Many employers expect that employees will outsource childcare and other caregiving responsibilities, without considering that such costs may constitute an unsustainable proportion of family income relative to other expenses. Other employers expect family members of the employee to assume childcare and other caregiving responsibilities, without considering that such family members may not exist, or may themselves have work responsibilities, caregiving responsibilities, or their own need for care that foreclose their assuming these functions.
(h) In response to the needs of the modern workforce, some employers have instituted flexible work arrangements that alter the time or place at which work is conducted, or the amount of work that is conducted, to allow employees to more easily meet the needs of both work and family life. But even when employers offer flexible workplace arrangements, employees may not avail themselves of such arrangements for reasons such as stigma and lack of consistent consideration by the employer of such requests. Employees who seek flexible work arrangements may endure a “flexibility bias” or “flexibility stigma” in which they are discredited and devalued in the workplace. Aware of this problem, some employees forgo flexible work opportunities. And many employees do not have such opportunities, because many employers do not systematically offer or consider requests for flexible working arrangements but instead leave requests from employees to the discretion of an individual manager, or do not even allow consideration of such requests. This voluntary patchwork system of accommodating employees’ needs for flexible working arrangements falls far short of meeting those needs.
(i) While a broad range of employees are adversely affected by rigid work and schedule arrangements, some categories of workers are hit harder than others. Workers who lack access to flexible work schedules are disproportionately low-wage workers, female workers, and workers of color. Employees with a college degree are nearly twice as likely to be able to change their schedules than those with less than a high school degree.
(j) Experience with laws in other countries to increase workplace flexibility has been overwhelmingly positive. Workplace flexibility has been shown to benefit employers and employees, as well as the environment. In recent years, the United Kingdom, Australia, Northern Ireland, Finland, Norway, Sweden, and New Zealand have pioneered model workplace laws that grant parent and caregiver workers the right to request flexible working arrangements. In Great Britain, in the first year after implementing the right to request a flexible working arrangement, a million parents came forward, and nearly all requests were granted with little opposition on the part of employers. The experiences of these countries have been so successful that some countries are expanding their laws from parents and caregivers to all employees. Already in Belgium, France, Germany, New Zealand, Great Britain, and the Netherlands, flexible workplace arrangements are open to all employees of most employers and are not targeted to employees with childcare or caregiving responsibilities.
(k) Perhaps in part because of these progressive laws in other countries, and in part due to a shortage or lack of family-friendly employment policies in the United States, the percentage of working-age American women in the workforce has been on the decline relative to other developed countries. For American women, the tension between workplace demands and caregiving responsibilities cuts in both directions. Many women who work are stretched thin on both fronts. And some women forgo work, or work only intermittently, to make it possible for them to serve as family caregivers, but they and their families suffer economic harm as a result.
(l) Similar “right to request” legislation at the Federal level was introduced in 2007 by then-U.S. Senators Edward M. Kennedy, Hillary Clinton, and Barack Obama; the same bill has been introduced several times since 2007, most recently by Congressional Representative Carolyn Maloney in May 2021. As this latest effort indicates, dDespite1 a 2010 White House summit on this topic, these Congressional attempts have not been successful, although in 2014 President Obama extended to federal employees a right to request flexibility in working arrangements. Also in 2014, the State of Vermont became the first jurisdiction in the United States to pass a “right to request” law modeled after the Congressional bill. New Hampshire enacted similar legislation in 2016. A growing number of state and local governments have also passed laws explicitly prohibiting discrimination based on caregiver status.
(m) Studies indicate that providing employees with access to flexible work arrangements reduces the conflicts many face between their work responsibilities and their family obligations, with the effect of enhancing employee satisfaction and morale and overall well-being, possibly even to the point of reducing mental health problems among employees.
(n) Flexible work arrangements also benefit businesses at minimal cost. Implementing workplace flexibility helps businesses attract and retain key talent, increase employee retention and reduce turnover, reduce overtime needs, reduce absenteeism, and enhance employee productivity, effectiveness, and engagement. Further, according to the President’s Council of Economic Advisors, as more businesses adopt flexibility practices, the benefits to society, in the form of reduced automobile traffic, improved employment outcomes, and more efficient allocation of employees to employers, may even be greater than the gains to individual businesses and employees.
(o) The COVID-19 pandemic forced many businesses and government entities to adopt full-time work from home and other workplace flexibilities for their employees. Despite widespread closures and disruptions among schools and child care providers, many employers found that employees were more productive and effective working from home. As a result, many employers have announced that they will continue workplace flexibilities after the pandemic, particularly regarding remote work. President Biden has announced that the federal government will permanently offer enhanced telework opportunities. Salesforce, Square, Dropbox, Coinbase, Yelp, Twitter, Facebook, and numerous other corporations have announced plans to let most employees work mostly or entirely from home. Often these changes are being implemented alongside other flexibilities in when and how employees work. For employees working in positions where remote work is simply not possible, the ability to request flexibility or predictability may be especially critical.
(p) Despite many employers voluntarily expanding flexibility, particularly in terms of remote work, legal protections of caregivers remain inadequate. In July 2021, the Youth, Young Adult, and Families Committee of the Board of Supervisors held a hearing on the Family Friendly Workplace Ordinance, including considering ways to strengthen the important protections it provides. The amendments to this Article 32 strengthen the Family Friendly Workplace Ordinance by providing that employees shall be permitted a Flexible or Predictable Working Arrangement unless the arrangement would cause the employer undue hardship, requiring an interactive process before a Flexible or Predictable Working Arrangement may be rejected, and strengthening enforcement of this Article, among other changes.
(Added as Administrative Code Sec. 12Z.2 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)
CODIFICATION NOTE
1. So in Ord. 39-22.