The BP Blast!: A California Employment Law Blog

THE AFTERSHOCKS OF SAN FRANCISCO’S RECENT ELECTION: PAID SICK LEAVE ORDINANCE GOES INTO EFFECT ON FEBRUARY 5, 2007

On November 7, 2006, San Francisco voters passed the “Paid Sick Leave Ordinance.” This ordinance is set to take effect on February 5, 2007. While many employers throughout California took an amused glance at the Ordinance, the aftershocks of this Employment Law earthquake are now being felt across the country.

The Epicenter: The City and County of San Francisco

Generally, the Ordinance provides that all employers with one or more full-time, part-time, or temporary workers employed within the City and County of San Francisco must provide those employees with paid sick leave coverage. Employers with ten or more employees must enable their employees to earn up to 72 hours of paid sick leave per year, while those with less than ten employees must provide up to 40 hours per year. An employee accrues one hour of sick leave for every 30 hours of work, up to his or her maximum allocation. All accrued leave can be used not only for the employee’s own illness, but for the illness of a parent, child, sibling, grandparent, grandchild, spouse, registered domestic partner, or other related individuals as broadly defined in the Ordinance. While employees who do not receive paid sick leave on equally or more favorable terms begin accruing paid sick leave on February 5, 2007, individuals employed after that date must wait for 90 days to begin accrual.

The Ordinance alters existing California law as it pertains to San Francisco employers. Section 233 of the California Labor Code, which governs the administration of sick leave, applies only to those California employers who choose to provide sick leave; however, it does not require employers to do so. Conversely, the Ordinance affirmatively mandates employers to provide sick leave to their San Francisco employees, and authorizes the enactment of oversight and enforcement procedures.

In addition, employers must post a notice informing employees of their rights in a “conspicuous place at the workplace or job site.” The posting must be in English, Spanish, Chinese, and any other language spoken by at least five percent of the employees at the workplace or job site. The City’s Office of Labor Standards Enforcement is charged with making available translated versions of the notice.

The Ordinance authorizes civil suits by the Office of Labor Standards Enforcement, the City Attorney, any person “aggrieved by a violation,” and those “acting on behalf of the public.” Recovery extends to all “legal or equitable relief as may be appropriate to remedy the violation,” including reinstatement, back pay, the payment of any sick leave unlawfully withheld, liquidated damages, injunctive relief, and reasonable attorneys’ fees.

The Aftershocks: Infecting Employers Statewide

While seemingly San Francisco specific, Employers will be surprised to know that San Francisco's Office of Labor Standards Enforcement takes the position that paid sick leave must accrue when any employee performs any work in San Francisco, even if only temporarily. Once the employee works 30 hours in San Francisco, no matter how long it takes them to do so, the employee accrues an hour of paid sick leave. Surprisingly, the employee is then entitled to only take paid sick leave when scheduled to work in San Francisco.

For example, assume an employee based in Sacramento travels to San Francisco for a morning meeting. Assuming the employee is in San Francisco for a total of three hours, the employer is required by the Ordinance to track that time to determine when the employee earns sick leave after 27 more hours of performing work in San Francisco. Other common examples requiring tracking include a delivery driver who spends 5 hours out of 8 hours delivering in San Francisco per day, a salesperson whose territory includes San Francisco, and an employee who attends a work mandated conference or convention in San Francisco. In each case, the employer must track and total the hours worked in San Francisco and then credit one hour's sick pay for each 30 hours of work within the City and County of San Francisco. In addition, the San Francisco Office of Labor Standards Enforcement takes the position these new rules apply to both non-exempt and exempt employees.

The burdens on employers without paid sick leave are obvious. Many employers who have some employees working periodically in the City or County of San Francisco may have to consider how to track their employees’ time while they are working in San Francisco. While legal challenges to this Ordinance are likely, it will took effect on February 5, 2007. If you have not accounted for this change, we have work to do!