Suits In The WorkPlace

Alice in San Francisco

     San Francisco's new Sick Leave Ordinance (Chapter 12W of the San Francisco Administrative Code) becomes effective in about a month and it's not good news for anyone with employees working in the city or the county.  California has long been a kind of Alice in Wonderland for employment law, and this statute pushes the state's reputation further down a rabbit hole. 

     The Ordinance applies to all employees, full time, part time and temporary.  It also applies to all employers with people in San Francisco or who control wages, hours and working conditions.  The term "employer" also includes anyone hiring employees through a temporary services or staffing agency. 

     The broad sweep of these definitions arguably means that employers can be held liable for the failure of their staffing agencies to comply with the Ordinance.  It also means that individual corporate officers and executives may be held liable, even when they reside out of state, as long as they are considered to "exercise control" over an employee's wages, hours and working conditions. 

     Now that I have your attention, the substantive terms of the ordinance are equally distressing.  The ordinance requires employers to provide every employee with one hour of paid sick leave for every 30 hours worked, up to a total accrual of 72 hours of paid leave for employers with ten or more employees (companies with 9 or less employees can limit the accrual to 40 hours).  Employees must be allowed to carry over accrued sick leave from year to year, but are not entitled to pay out of accrued but unused sick leave upon termination of employment. 

     In keeping with the "nanny state" theme of the Ordinance, employees may use sick leave not only for their own purposes, but to aid in the care of children, parents, guardians, wards, siblings, grandparents, grandchildren, spouses, registered domestic partners under any state or local law, or another "designated person" of the employee's choice.  An employee gets to name a "designated person" within ten days after becoming eligible for sick leave, and then can amend the designation annually, which will come in handy for those on-again-off-again types of relationships.

     In order to keep employers from asking too many embarrassing questions about exactly what an employee is using leave time for, the ordinance limits the employer's ability to verify that the employee's use is lawful to "reasonable measures."  "Reasonable measures" is undefined, which means that an employer who, for example, makes a phone call to an employee's house to see if he is really there taking care of his "designated person," is at the whim of the local investigator from the Office of Labor Standards Enforcement, or a judge, or the city attorney, or a jury as to whether the phone call was "reasonable."

     Finally, the Ordinance contains a retaliation provision, which creates a presumption of retaliation whenever adverse action is taken against a person within 90 days of her filing a complaint, cooperating in an investigation of a complaint, informing any other person of an alleged violation of the ordinance, informing someone of her rights under the ordinance, or breathing.  Okay, breathing is not part of this presumption, but it might as well be.

     Given the fact that individual corporate officers who have never set foot in San Francisco might be held personally liable under the Ordinance for a front line supervisor's violation, it would make sense for companies to get out in front on setting policies and programs to comply.  Or, companies could simply move out of San Francisco County and avoid the whole mess altogether.