Benefiting Employees
California Lawyer

Benefiting Employees

Lawyers eye San Francisco's new flex-scheduling law.

June 2014

Illustration by Randy Lyhus

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San Francisco - with a smaller population of kids (13.4 percent) than in any U.S. city near its size and the largest population (14 percent) age 65 and older - has tried several legal means to help workers who care for family members. The latest, the Family Friendly Workplace Ordinance, which took effect in January (see San Francisco Admin. Code, Ch. 12Z), gives San Francisco workers the right to request a flexible or predictable schedule so they can care for a child or parent or for another family member with a serious health condition. Employers are subject to it if they have 20 or more workers, but they may reject a staffer's request if they give legitimate reasons. The ordinance builds on other local measures that are now being emulated across the country.

Several law firms issued client alerts as San Francisco this winter expanded the number of employers affected. According to Nixon Peabody, for instance, the ordinance imposes onerous paperwork and other requirements. The firm warned employers to expect similar legislation in other states and municipalities, though none has succeeded at the federal level.

Roland M. Juarez, an employment law partner at Hunton & Williams in Los Angeles, says the ordinance adds to the factors that make companies skittish about setting up shop in California. He says it's unnecessary because businesses in competitive marketplaces like San Francisco already try to accommodate employees. "The main downside that I see is it's just another layer of bureaucracy on employers. It's a cost issue, and it's also a burden."

Says the measure's author, San Francisco Board of Supervisors President David Chiu, a former prosecutor, civil rights attorney, and small business commissioner: "I wanted to do something to help San Franciscans who are in the difficult situation of having to choose between their jobs and the well-being of their ... loved ones."

Young families often leave San Francisco before their children start school, frequently citing the high cost of living and concerns about safety and school quality. Meanwhile, local workers also bear the burden of caring for older relatives.

Chiu aide Catherine Rauschuber says the supervisor researched similar legislation in several other countries, including the United Kingdom, Australia, and New Zealand.

In 2007, San Francisco became the first U.S. city with mandatory paid sick leave; New York, Seattle, and other cities and the state of Connecticut have followed suit. San Francisco also is among the few U.S. cities with its own minimum wage (higher than the state's, which is higher than the federal). And it's the only U.S. city to set a minimum amount employers must spend on health care for eligible workers if they don't directly insure their employees.

Researchers at UC Berkeley who tracked 254 San Francisco restaurants against 100 in the East Bay found that San Francisco's adoption of a minimum wage in 2003 had no effect on employment or business closures. And a survey of 26 San Francisco businesses, conducted by The Urban Institute, found they largely absorbed the cost, though many would have preferred a state or federal law that would impose the same costs on their competitors.

They're starting to get their wish. State minimum wage hikes enacted in 2013 start taking effect next month. Assembly Member Lorena Gonzalez (D-San Diego) has proposed a statewide sick leave law (AB 1522), and U.S. House Minority Leader Nancy Pelosi (D-San Francisco) has called for a national requirement. But the Senate turned back President Barack Obama's push for a higher federal minimum wage hike in April. Says Ken Jacobs, chair of UC Berkeley's Center for Labor Research and Education: "[Change] does bubble up, but it takes time."

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