?On July 12, San Francisco’s amended Family Friendly Workplace Ordinance (FFWO) goes into effect. All employers who conduct business and have employees working in the city and county of San Francisco or employees who telework, will need to comply with the FFWO. It gives employees the right to request “flexible or predictable work arrangements” to assist with caregiving responsibilities. The amendment creates significant changes to the existing FFWO—it enlarges the scope of an employer’s obligation under the ordinance, while also making it easier for employees to obtain modified schedule arrangements so they can effectively work and perform their caregiving responsibilities with relative ease. Covered employers should take note of these changes to avoid scrutiny from the San Francisco Office of Labor Standards Enforcement (OLSE) and costlier penalties.
FFWO’s Adoption and Purpose
The FFWO currently gives certain employees who act as primary caregivers the right to request flexible or predictable work arrangements to assist with caregiving responsibilities. The ordinance was adopted and approved in October 2013, and has been in effect since Jan. 1, 2014.
The Operative FFWO
Under the operative FFWO, when a covered employer receives a written request from a covered employee for a flexible or predictable working arrangement, so that they may act as a caregiver, the covered employer is currently required to:
- Meet with the requesting employee within 21 days of the request.
- Respond to the employee’s request in writing, either approving or denying the request within 21 days (or longer by agreement) after meeting with the employee.
+If the request is granted, the employer must confirm the arrangement in writing.
+If the request is denied, the employer must provide a “bona fide business reason” for the denial and notify the employee of their rights to request reconsideration under the ordinance.
- When requesting reconsideration (within 30 days of the decision), the employer must meet with the requesting employee within 21 days of receiving it. The employer must then approve or deny the request in writing within 21 days of meeting the employee. If the request is being denied, the employer must state its reasons for the decision.
The FFWO also includes standard prohibitions against retaliation and interference; notice requirements; and the requirement to maintain documentation related to any employee requests made (three years from when the request was made). It also includes administrative enforcement and penalty provisions, including but not limited to $50 penalties for each day on which an employee’s rights are violated. The OLSE also has the authority to bring a civil action against a violator and seek appropriate legal and equitable relief to remedy a suspected violation and recover the attorney fees and costs.
The Amended FFWO: Significant Changes
The amended FFWO will become operative on July 13. Generally, it makes it easier for employees to obtain and maintain a “flexible or predictable working arrangement” and expands the criteria of a covered employee to include more workers. Covered employers should be aware of the following notable changes to the amended ordinance to ensure continued compliance:
- Care for Persons Age 65 or Older Expanded: Under the operative FFWO, a covered employee who seeks a “flexible and predictable work arrangement” to assist them with the care of a person age 65 or older without a serious health condition, must be a parent. With the amendment, an employee caregiver to any person age 65 or older and in a family relationship with the employee will now qualify for modified work arrangements.
- Covered Employees to Include Teleworkers Living Outside the City: The amended ordinance will consider a covered employee to include employees who telework outside of San Francisco, if their covered employer maintains an office or worksite within San Francisco where the employee may work, or was permitted to work from before the COVID-19 pandemic.
- Covered Employees Now Have a Right to a “Flexible or Predictable Working Arrangement” Unless It Causes Undue Hardship to the Employer: The operative FFWO provides covered employees with the right to request a “flexible or predictable working arrangement.” Under the amended FFWO, covered employees will have the right to a modified arrangement—instead of submitting a written “request.” Employees will be required to submit instead, a written “notice.” Upon receipt of the “notice,” a covered employer will need to respond to it by:
+Either (1) the employer may elect to meet with the employee within 14 days (rather than the 21 days under the operative law), and/or (2) the employer must respond within 21 days of receipt of the “notice” (rather than having a maximum total of 42 days to render a decision under the operative ordinance).
The employer’s response must be comprised of the following:
- Agreement; or
- Disagreement with the proposed arrangement, but then must engage in an interactive process with the employee to determine an acceptable arrangement; or
- Deny the employee’s need for a modified work arrangement (after exhausting the interactive process), but only if granting it would cause the employer undue hardship (i.e., significant financial or operational strain). The employer must then explain in a written response, the reasons for denial. Part of the explanation must include the identifiable costs directly caused by the proposed arrangement (e.g., cost of productivity loss, retraining or hiring, transfer of employees, etc.). Employers are not required to do so under the current ordinance.
+Upon denial, employers must still notify an employee of their right to request reconsideration, but must also inform the employee of his/her right to file a complaint with the OLSE.
+The employer must provide a final decision to a reconsideration request in writing within 14 days after a meeting has occurred (rather than 21 days under the operative law).
+If the request is denied, the employer must explain the undue hardship it will face by approving the request, and then again notify the employee of his or her rights to file a complaint with the OLSE.
Employers should specifically note that under the operative FFWO employers have wide discretion in granting an employee’s request, so long as they have a bona fide business reason. However, the amended FFWO limits employer discretion because they will either have to agree to an employee’s proposed work arrangement, or if it disagrees, must engage in an interactive process which should ultimately result in a modified work arrangement, unless it will cause undue hardship—a stricter standard to justify denial as opposed to a bona fide business reason.
Although this will certainly create more burdens for the employer, it also strengthens a provision which will help to curb any employee abuse under the amended law. While the operative FFWO allows an employer to require verification of an employee’s caregiver status, the amended provision will allow employers to require an employee to attest or verify their caregiver status prior to agreeing to a flexible or predictable work arrangement.
- Modifying an Approved “Flexible and Predictable Work Arrangement”: Under the operative ordinance, employers may unilaterally revoke an already existing arrangement, so long as they give 14-days’ written notice. The amended ordinance will require both employer and employee to mutually agree to an altered arrangement by using the interactive process, only if the employer determines continuing the existing arrangement would cause it undue hardship. If the interactive process is unsuccessful, only then may an employer unilaterally revoke the existing arrangement with 14-days’ written notice.
- Costlier Penalties: The penalty provisions are costlier under the new amended ordinance. The new penalty provision allows the OLSE to require violators to pay the cost of care the employee whose rights were violated incurred due to violation if that cost is greater than the $50 penalty scheme now in effect. Similarly, the OLSE will also be able to recover its full costs for investigating and remedying the violation if those costs are greater than the current $50 penalty scheme.
Conclusion
Under the amended FFWO, many covered employers will face greater challenges in the form of fiscal costs in maintaining their operations. Therefore, covered employers should consult with experienced legal counsel concerning compliance with the amended FFWO.
Peter Y. Lee is an attorney with SheppardMullin in San Francisco. © 2022 Sheppard Mulllin. All rights reserved. Reposted with permission.