Hunton Employment & Labor Perspectives

Earlier this month, San Francisco became the nation’s first city to enact a flexible work-time law for employees.  In theory, the law provides relief to employees seeking changes in their work schedules to accommodate their needs to care for their children or elderly parents.

In reality, the law affords no additional entitlements to employees while simultaneously adding to employers’ already-swelling paperwork burdens. At least the law provides additional work for city administrators and employers’ human resources professionals, albeit with no results.

Under the Family Friendly Workplace Ordinance, San Francisco employees may request from their employers changes in their working arrangements to accommodate their “caregiving responsibilities” for (1) their minor children, (2) their parents aged 65 or older, or (3) close family members (including grandchildren and siblings) who suffer from a serious health condition. The requests can include permanent or temporary changes in start-and-finish times for work shifts, the number of hours worked, the place of work (e.g., home as opposed to office), and the like.

The employer can say “no.” And that effectively ends the matter.

Technically, an employer denying the request must provide the employee with a written explanation that sets out a “bona fide business reason” for the denial. What constitutes a bona fide business reason? Essentially, whatever the employer says is bona fide. Should the employee file a complaint with the City’s enforcement agency, the agency cannot challenge the employer’s bona fide business reason – even if its investigator thinks the reason lacks bona fides. (And the employee cannot file a private lawsuit.)

Substance of the law aside, the agency is not completely toothless. It can enforce the law’s procedural and paperwork requirements. Here is how the process works:

• If the employer has 20 or more employees, and the employee has been employed for at least six months and works at least eight hours weekly, the employee can make the written request for a different working arrangement. The request must be detailed, including a description of how the request is related to caregiving;
• The employer must meet with the employee within 21 days to discuss. Within 21 days of the meeting, the employer must provide the employee with a written decision. A denial must include the bona fide business reason, as well as a notification that the employee may request reconsideration from the employer;
• (In other words, an employer can permit 42 days to elapse before providing the employee with a decision. If the employee had requested on June 1 that he be given a shift change during the final two weeks of June to help with his mother’s post-surgery rehabilitation, well . . . .);
• If the employee requests reconsideration, the employer again has 21 days to meet, and 21 more days to issue a final decision in writing;
• It is only after reconsideration that the employee can file a Complaint with the San Francisco enforcement agency.

The City’s agency can investigate whether the employer went through the process and whether it has maintained the employee’s written requests and the employer’s written responses. The employer must maintain those records for at least three years. The agency can enforce violations of these procedures-and-paper requirements. The employer also must post in its workplace a notice that informs employees of their rights under the Ordinance. The agency likewise can enforce violations of the poster rule.

The Ordinance also prohibits employers from retaliating against employees who request these work-time adjustments. The agency can enforce that, too, although it is unknown why an employer would retaliate against an employee who makes a request that simply can be denied.

The law is not clear on what “caregiving” means. If an employee wants to work 8-to-4 instead of 10-to-6 in order to assist her autistic son at therapy sessions, we presume that qualifies. If an employee makes the same request to pick up her daughter from soccer practice, that’s a more difficult call.

But it largely is an irrelevant call. Here is the recipe: Employers who receive a request should discuss it with the employee; grant the request if feasible; deny it if not; inform the employee in writing of its decision; include the bona fide reason for a denial; and save all of the paper.

The law takes effect on January 1, 2014.