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Offering Additional Work to Part-time Employees.
Retention of Employees upon Change in Control.
Transition Employment Period.
Notice of Change in Control.
Notice of Employee Rights.
Requirements Governing Retention of Records.
Investigation and Administrative Enforcement by the Agency.
Authority of Agency to Impose Administrative Fines.
Agency May Adopt Regulations.
No Limitation of Other Rights and Remedies.
No Conflict with Federal or State Law.
Undertaking for the General Welfare.
Waiver under Collective Bargaining Agreement.
(a) Formula retail establishments are a major employment base for San Francisco. There are approximately 1,250 formula retail establishments in the City, accounting for approximately 12 percent of all retailers. The City has a strong interest in ensuring that the jobs these formula retail establishments create allow workers to meet basic needs and achieve economic security.
(b) Employers have increasingly moved to scheduling practices that relegate their employees to involuntary part-time status, contributing to the economic insecurity of these employees.
(c) Many part-time workers in our City are not currently given the opportunity to work enough hours to allow them to make a decent living. Approximately one-quarter of part-time workers in the workforce overall are working part-time involuntarily, and the rate of involuntary part-time work is highest among workers in low-wage jobs.
(d) Giving part-time employees of formula retail establishments the opportunity to work more hours when the work is available advances the interests of the City as a whole by creating jobs that keep workers and their families out of poverty, and will help these workers meet basic needs and avoid economic hardship.
(e) Changes in ownership or control of formula retail establishments can result in displacement of their workforce. The City has a strong interest in promoting stabilization of this workforce, which reduces the need for social services and helps these workers avoid economic hardship. A transitional retention period upon change in ownership or control of these establishments promotes stabilization of this workforce.
(f) To safeguard the public welfare, health, safety, and prosperity of the City, it is essential that workers in our community earn sufficient wages to ensure a decent and healthy life for themselves and their families. Prompt and efficient enforcement of Article 33F will provide workers in the City with economic security and the assurance that their rights will be respected.
For purposes of this Article 33F, the following definitions apply:
"Agency" shall mean the City's Office of Labor Standards Enforcement.
"Change in Control" shall mean any sale, assignment, transfer, contribution, or other disposition (including by consolidation, merger, or reorganization) of all or the majority of the assets of, or a controlling interest in, the Incumbent Employer or Formula Retail Parent or any Formula Retail Establishment under the operation or control of either such Incumbent Employer or Formula Retail Parent.
"City" shall mean the City and County of San Francisco.
"Eligible Employee" shall mean any Employee who has been employed by the Incumbent Employer at the Formula Retail Establishment subject to a Change in Control for at least 90 days prior to the date that the Transfer Document is fully executed. "Eligible Employee" does not include a managerial, supervisory, or confidential employee.
"Employee" shall have the same meaning as the definition of "Employee" in Section 12R.3 of the Minimum Wage Ordinance (Administrative Code Chapter 12R), as amended from time to time, except that Employee shall also mean any Person who, in a particular week, is scheduled for an On-Call Shift for at least two hours for an Employer within the geographic boundaries of the City, regardless of whether the person is required to report to work for such shift.
"Employer" shall mean any Person that owns or operates a Formula Retail Establishment with 20 or more Employees in the City, 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 any individual. For the purpose of calculating the 20-employee threshold referenced herein, Employees performing work in other Formula Retail Establishments in the City that are owned or operated under the same trade name by the same Employer shall be counted. Notwithstanding the foregoing definition, "Employer" does not include a Nonprofit Corporation or governmental entity.
"Employment Commencement Date" shall mean the date on which an Eligible Employee retained by the Successor Employer as required in this Article 33F commences employment triggering the commencement of the 90-day retention period for the Successor Employer.
"Formula Retail Establishment" shall mean a business located in San Francisco that falls under the Planning Code's definition of "Formula Retail Use," as amended from time to time, except that the business must have at least 40 retail sales establishments located worldwide.
"Formula Retail Parent" shall mean any Person who owns or controls the Incumbent Employer.
"Full-time" shall mean 35 or more hours of work in each work week.
"Incumbent Employer" shall mean the Employer that owns, controls, and/or operates the Formula Retail Establishment prior to the Change in Control.
"Nonprofit Corporation" shall mean a nonprofit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains valid nonprofit status under Section 501(c)(3) of the United States Internal Revenue Code, as amended from time to time, and all rules and regulations promulgated under such Section.
"On-Call Shift" shall mean any work shift for which an Employee must, less than 24 hours in advance of the start of the shift, either contact the Employer or wait to be contacted by the Employer to learn whether the Employer requires the Employee to report to work for the shift.
"Part-time" shall mean fewer than 35 hours of work in each work week.
"Person" shall mean an individual, proprietorship, corporation, partnership, limited partnership, limited liability partnership or company, trust, business trust, estate, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign.
"Property Services Contractor" shall mean any contractor or subcontractor of an Employer that provides janitorial and/or security services to the Employer at a Formula Retail Establishment in San Francisco covered by this Article 33F.
"Successor Employer" shall mean the Employer that owns, controls, and/or operates the Formula Retail Establishment after the Change in Control.
"Transfer Document" shall mean the purchase agreement or other document(s) effecting the Change in Control.
(a) Subject to the limitations herein, before hiring new Employees or using contractors or a temporary services or staffing agency to perform work in a Formula Retail Establishment, an Employer shall first offer the additional work to existing Part-time Employee(s) if (1) the Part-time Employee(s) are qualified to do the additional work, as reasonably determined by the Employer and (2) the additional work is the same or similar to work the Employee(s) have performed for the Formula Retail Establishment. This Section 3300F.3 requires Employers to offer to Part-time Employees only the number of hours required to give the Employee 35 hours of work in a week.
(b) An Employer has discretion to divide the additional work hours among Part-time Employees consistent with this Section 3300F.3.
(c) A Part-time Employee may, but is not required to, accept the Employer's offer of additional work hours under this Section 3300F.3. The Employee shall have 72 hours to accept the additional hours, after which time the Employer may hire new Employees to work the additional hours. The 72 hours referred to in the previous sentence begins either when the Employee receives the written offer of additional hours or whenever the Employer posts the offer of additional hours described in subsection (d), whichever is later. An Employee who wishes to accept the additional hours must do so in writing.
(d) When this Section 3300F.3 requires an Employer to offer additional work hours to existing Part-time Employees, the Employer shall make the offer either in writing or by posting the offer in a conspicuous location in the workplace where notices to Employees are customarily posted. Employers are encouraged to post the electronic notice on their internal web sites in a conspicuous location. The employer shall retain each written offer no less than three years as required under Section 3300F.8.
(e) The requirements imposed by this Section 3300F.3 shall apply to Property Services Contractors as to work performed in San Francisco at a Formula Retail Establishment covered by this Article 33F, under a contract with an Employer. An Employer shall include in any such contract executed on or after the operative date of this Article 33F, (1) a provision requiring the Property Services Contractor to comply with this Section and (2) a copy of this Section. The Employer shall retain copies of such contracts for a period of not less than three years following the expiration or termination of the contract, and make such copies available to the Agency for inspection upon request. In addition, Sections 3300F.7, 3300F.8, 3300F.9, 3300F.10, 3300F.11, and 3300F.12 of this Article 33F shall apply to a Property Services Contractor as if it is an Employer for purposes of notice, record retention, compliance, investigation, and enforcement of the requirements of this Section 3300F.3.
(a) The Incumbent Employer shall, concurrent with the date that the Transfer Document is fully executed, provide to the Successor Employer a list ("Retention List") that includes the name, contact information, date of hire, rate of pay, average number of hours worked per week in the six months prior to the Change in Control, and employment occupation classification of each Eligible Employee. For purposes of this subsection (a), contact information shall include but need not be limited to the Eligible Employee's phone number, home address and email address.
(b) The Successor Employer shall employ each Eligible Employee identified on the Retention List to work in the Formula Retail Establishment, under the same terms of employment with respect to job classification, compensation, and number of work hours that governed the Eligible Employee and Incumbent Employer, and as otherwise required by law. The Successor Employer shall continue to employ the Eligible Employees in the Retail Formula Establishment for a period of 90 days from the Employee Commencement Date, consistent with the following provisions:
(1) The Successor Employer shall make the offer of employment in writing;
(2) If the Eligible Employee declines to accept the offer of employment, the Successor Employer's obligation to offer employment to the Eligible Employee shall be deemed satisfied;
(3) The requirements of this Article 33F shall apply whether the Successor Employer operates the Formula Retail Establishment in the same location or relocates to another location, so long as that other location is in San Francisco; and
(4) The requirement that the Successor Employer employ Eligible Employees from the Retention List shall remain in effect notwithstanding any delay in the Successor Employer's opening the Formula Retail Establishment due to relocation, remodeling, or other reason, provided that this requirement shall terminate three years from the date that the Transfer Document is fully executed.
(a) If the Successor Employer determines that it requires fewer Eligible Employees than were employed by the Incumbent Employer, the Successor Employer shall retain Eligible Employees by seniority based on the date of hire by the Incumbent Employer or, if there is an applicable collective bargaining agreement, pursuant to that agreement.
(c) The Successor Employer may not employ any individual other than an Eligible Employee in the Eligible Employee's job classification for the Formula Retail Establishment from the date that the Transfer Document is fully executed until 90 days after the Successor Employer opens the business to the public.
(a) The Incumbent Employer shall post public notice of the Change in Control at the location of the affected Formula Retail Establishment within 24 hours of the date that the Transfer Document is fully executed. The Incumbent Employer shall be responsible for keeping the public notice posted before the Change in Control and the Successor Employer shall be responsible for doing so after the Change in Control. The notice of Change in Control shall remain posted for at least 30 days.
(b) Notice shall include, but not be limited to, the name of the Incumbent Employer and its contact information, the name of the Successor Employer and its contact information, the U.S. Postal and electronic mailing addresses that Eligible Employees may use to provide their updated contact information, and the effective date of the Change in Control.
(c) Notice shall be posted in a conspicuous place at the Formula Retail Establishment so as to be readily viewable by Eligible Employees and other employees, customers, and members of the public.
(d) Successor Employers shall maintain the Retention List of Eligible Employees entitled to employment for the 90 day transition period, including updated contact information provided by Eligible Employees, until the expiration of the retention rights of all Eligible Employees on the list.
(e) The Employer who pays the wages of Eligible Employees for the first time after the Transfer Document is fully executed shall provide with the paycheck notice of the rights of Eligible Employees under this Article.
(a) The Agency shall, no later than the operative date of this Article 33F, publish and make available to Employers, in English, Spanish, Chinese, Tagalog, and any other language spoken by more than 5% of the San Francisco work force, 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.
(b) Every Employer shall post in a conspicuous place at any workplace or job site where any of its Employees works the notice prepared by the Agency under subsection (a) informing Employees of their rights under this Article 33F in English, Spanish, Chinese, Tagalog and any other language spoken by at least five percent of the Employees at the workplace or job site.
(a) Employers shall retain employment and payroll records pertaining to current and former Employees for no less than three years.
(b) Employers shall retain copies of written offers to current and former Part-time Employees for additional work hours under Section 3300F.3 for no less than three years.
(c) Each Successor Employer shall retain a copy of offers of employment to Eligible Employees required after a Change of Control as provided in Section 1300F.41 for no less than three years from the date that the Successor Employer made the offer.
(d) Successor Employers shall retain the Retention List of Eligible Employees entitled to employment for the 90-day transition period for no less than three years from the date the Successor Employer received the list from the Incumbent Employer.
(e) Employers, Incumbent Employers and Successor Employers shall allow the Agency access to records relating to their obligations under this Article 33F, with appropriate notice and at a mutually agreeable time, to enable the Agency to monitor compliance with the requirements of this Article.
It shall be unlawful for a Formula Retail Employer or any other Person to take adverse action against any person in retaliation for exercising rights protected under this Article 33F. Rights protected under this Article include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this Article; and the right to inform any person of his or her potential rights under this Article and to assist him or her in asserting such rights. Protection of this Section 3300F.9 shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Article. Taking adverse action against a person within 90 days of the person's exercise of rights protected under this Article shall raise a rebuttable presumption that the party taking the adverse action did so in retaliation for the exercise of such rights.
(a) Authority. The Agency is authorized to take appropriate steps to enforce and coordinate enforcement of this Article 33F , including the investigation of any possible violations of this Article.
(b) Determination of Violation and Penalties.
(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, provided, however, that during the first three months following the operative date of this Article 33F , the Agency shall not order any relief but may issue warnings and notices to correct.
(2) After investigating a possible violation of this Article 33F , and providing the Employer, Incumbent Employer or Successor Employer the opportunity to respond to the allegations, if the Agency determines that a violation has occurred, it may issue a Determination of Violation. The Determination of Violation shall identify the violation and the factual basis for the determination. The Agency shall serve the Determination of Violation on the Employer, Incumbent Employer or Successor Employer by United States mail and the date of service shall be the date of mailing. In the Determination of Violation, the Agency may order any appropriate relief, provided, however, that during the first three months following the operative date of this Article 33F , the Agency shall issue only warnings and notices to correct. Thereafter, the Agency may order relief including, but not limited to, requiring a Formula Retail Employer to offer additional hours of work to Part-time Employees as required under Section 3300F.3, reinstatement, payment of lost wages to the Eligible Employee or person whose rights under this Article were violated, and the payment of an additional sum as an administrative penalty that does not exceed the amount of the award for lost wages. To compensate the City for the costs of investigating and remedying the violation, the Agency may also order the violating Employer, Incumbent Employer or Successor Employer to pay to the City an amount that does not exceed its enforcement costs.
(c) Appeal Procedure. An Employer, Incumbent Employer or Successor Employer may appeal from a Determination of Violation in accordance with the following procedures:
(1) Any appeal from a Determination of Violation (referred to in this subsection (c) as "Appeal") shall be filed in writing by the party filing the Appeal (referred to as "Appellant") within 15 days of the date of service of the Determination of Violation. Appellant shall file the Appeal with the City Controller and serve a copy on the Agency. Failure by the Appellant to submit a timely, written Appeal shall constitute concession to the violation, and the violation shall be deemed final upon expiration of the 15-day period.
(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 in advance of further proceedings under this subsection (c), with the intention that such meeting occur within 30 days of the date the Appeal is filed if feasible.
(3) After the expiration of 30 days following the date the Appeal is filed, any party may request in writing, with concurrent notice to all other parties, that the Controller appoint a hearing officer to hear and decide the appeal. If no party requests appointment of a hearing officer, the Notice of Violation shall be deemed final on the 60th day after the date the Appeal is filed.
(4) Within 15 days of receiving a written request for appointment of a hearing officer, the Controller shall appoint an impartial hearing officer who is not part of the Agency and immediately notify the Agency and Appellant, and their respective counsel or authorized representative if any, of the appointment. The appointed hearing officer shall be an Administrative Law Judge with not fewer than two years' experience in labor or employment law and/or wage and hour matters, or an attorney with not fewer than five years' experience in labor or employment law and/or wage and hour matters.
(5) 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. The hearing officer shall conduct a fair and impartial evidentiary hearing in conformance with the time limitations set forth in this subsection (c)(5) and in any applicable rules and regulations, so as to avoid undue delay in the resolution of any Appeal. The hearing officer shall have the discretion to extend the times under this subsection (c)(5), and any time requirements under any applicable rules and regulations, only upon a determination of good cause.
(6) Appellant shall have the burden of proving by a preponderance of the evidence that the basis for the Determination of Violation, and/or the amount of lost wages, interest, or penalty payments at issue in the Appeal, is incorrect.
(7) 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 decision of the hearing officer shall consist of findings and a determination. The hearing officer's findings and determination shall be the final administrative determination.
(8) Appellant may appeal a final administrative determination 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.
(9) Failure to appeal a Determination of 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, Incumbent Employer or Successor Employer against the City regarding the Agency's Determination of Violation.
(10) A Property Services Contractor, and an Employer that has a contract with the Property Services Contractor, shall be jointly and severally liable for all amounts due pursuant to a Determination of Violation finding a violation by the Property Services Contractor under this Article or a court judgment thereon. The Agency shall first exhaust all reasonable remedies to collect the amount due from the Property Services Contractor before pursuing the claim against the Employer.
(d) Compliance. Where prompt compliance with a Determination of Violation is not forthcoming, the Agency may take any appropriate enforcement action to secure compliance, including referring the action to the City Attorney to consider initiating a civil action pursuant to Section 3300F.12.
(e) Reporting Violations. An Employee or Eligible Employee or any individual who has reason to believe that a violation of this Article has occurred may report to the Agency any suspected violation of this Article. The Agency shall encourage reporting pursuant to this subsection (e) by keeping confidential, to the maximum extent permitted by applicable laws, 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 his or her name and identifying information as necessary to enforce this Article or for other appropriate purposes.
(a) The Labor Standards Enforcement Officer or a designee of that Officer may impose an administrative fine of up to $500 per Eligible Employee employed by the Employer, Incumbent Employer, or Successor Employer for violating any of the following requirements of this Article 33F :
(1) The requirements under Section 3300F.4 that an Incumbent Employer provide a Successor Employer a list identifying Eligible Employees and information regarding their employment, and that the list be provided concurrent with the date of final execution of the Transfer Document;
(2) The requirement under Section 3300F.6 that the Incumbent Employer and Successor Employer post notice of a Change in Control;
(3) The requirement under Section 3300F.6 that the Employer provide notice of the rights of Eligible Employees under this Article with the first paycheck after the Transfer Document is fully executed;
(4) The requirement under Section 3300F.7 that an Employer post notice of the rights of Employees under this Article 33F , with each day that the notice is not posted deemed a separate violation but only if the Agency gave the Employer notice that continued violations would authorize a citation under this subsection (a); and
(5) The requirement under Section 3300F.8 that an Employer make available to the Agency employment and payroll records.
(6) The requirement under Section 3300F.3 that an Employer make the offer of additional hours in writing.
(b) Administrative Code Chapter 100, "Procedures Governing the Imposition of Administrative Fines," as it may be amended from time to time, is hereby incorporated in its entirety and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce the provisions of this section 3300F.11 or any rule or regulation adopted relating to the provisions enumerated in subsections (a)(l)-(6) of this Section 3300F.11.
The City Attorney may bring a civil action in a court of competent jurisdiction against an Employer, an Incumbent Employer or a Successor Employer for violating any requirement of this Article and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of lost wages, the payment of an additional sum as a civil penalty not to exceed the amount awarded for lost wages, and reinstatement in employment and/or injunctive relief and shall be awarded reasonable attorneys' fees and costs.
The Agency may promulgate appropriate guidelines or rules to implement this Article 33F . Such guidelines or rules shall be consistent with this Article and may be relied on by Employers, Employees, and other persons to determine their rights and responsibilities under this Article. Such guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation and enforcement of this Article, including supplementary procedures for helping to inform Employees of their rights under this Article and for monitoring Employer compliance.
This Article 33F does not in any way limit the rights and remedies that the law otherwise provides to Employees, including but not limited to the rights to be free from wrongful termination and unlawful discrimination.
If any section, subsection, sentence, clause, phrase, or word of this Article 33F , or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Article. The Board of Supervisors hereby declares that it would have passed this Article and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Article or application thereof would be subsequently declared invalid or unconstitutional.
Nothing in this Article 33F shall be interpreted or applied so as to create any right, requirement, power, or duty in conflict with any federal or state law.
In enacting and implementing this Article 33F , the City is assuming an undertaking only to promote the general welfare. It 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 33F shall become operative 180 days after its effective date.
For Employees of Formula Retail Establishments or Property Service Contractors covered by a bona fide collective bargaining agreement, all or any portion of the applicable requirements of this Article 33F shall not apply to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.
(Added by Ord. 117-15 , File No. 150269, App. 7/15/2015, Eff. 8/14/2015)
(Added by Ord. 17-15 , File No. 141265, App. 2/13/2015, Eff. 3/15/2015, Expired 1/4/2016)