LeClair Ryan – The mayor of San Francisco recently signed the Paid Parental Leave Ordinance, a law that gives workers in the city the most generous parental leave benefits in the country.
Covered employees will have the right to take up to six weeks of paid leave to bond with a newborn child, newly adopted child, or new foster child. During their leave, workers will be paid 100 percent of their regular wages. In addition, when their leave period ends, workers have the right to return to their job.
San Francisco’s new parental leave ordinance builds on benefits already provided by California’s Family Leave Act. Under the California Family Leave Act, employees who pay into the State Disability Insurance fund have the right to take six weeks of leave to bond with a new child. During their six weeks of leave, eligible workers receive 55 percent of their regular wages from the state insurance program. The weekly benefit amount is subject to a cap, currently set at $1,129 per week.
In San Francisco, employers will be required to pay workers the difference between their regular wages and the partial wages paid by the state insurance program. By combining the compensation paid by the State Disability Insurance program with the compensation paid by San Francisco employers under the Paid Parental Leave Ordinance, eligible workers will receive 100 percent of their regular pay during leave. Employer contributions will be capped at an amount determined based on the state’s maximum weekly benefit amount. Based on current figures, a San Francisco employer’s maximum weekly contribution would be $924.
The Paid Parental Leave Ordinance applies to many, if not most, employers that have workers in the city of San Francisco. Employers with fewer than 20 employees and government entities are exempt from the law. Also exempt are workers covered by a bona fide collective bargaining agreement, as long as the agreement was either entered into before the parental leave ordinance went into effect, or expressly and clearly waives workers’ rights under the parental leave law.
The Paid Parental Leave Ordinance will be rolled out in three stages over the course of a year. The date on which a particular employer becomes subject to the law depends on the total number of employees it has, as follows:
Employers with 50 or more total employees: January 1, 2017
Employers with 35 or more total employees: July 1, 2017
Employers with 20 or more total employees: January 1, 2018
10 Key Points
There are 10 important stipulations contained in the Paid Parental Leave Ordinance pertaining to whom the law applies to, when the leave can be taken, employee rights, and employer documentation requirements and protections.
- The law applies to all full-time, part-time, and temporary workers who: a) Work in San Francisco at least 8 hours each week; b) Spend at least 40 percent of their weekly hours working within the city’s boundaries; c) Started working for their current employer at least 180 days prior to beginning their leave; and d) Are eligible to receive benefits under California’s Paid Family Leave Law.
- Mothers and fathers are both covered by the law regardless of whether they are part of an opposite-sex couple, same-sex couple, or are single parents.
- Employees may take leave under the Paid Parental Leave Ordinance anytime in the first year after their child is born, adopted, or taken in as a foster child.
- Employees must be allowed to return to their pre-leave job after their leave period ends.
- Employers may not retaliate against employees who exercise their rights under the parental leave ordinance or who allege that their employer violated the law.
- If an employer terminates a worker’s employment while the employee is taking parental leave, then the employer must still pay for its portion of the employee’s wages for the remainder of the employee’s leave period.
- Employers should exercise considerable caution before firing a worker who has requested leave under the Paid Parental Leave Ordinance. If an employer terminates a worker before the worker’s leave period begins, but within 90 days after the leave was requested, the termination is automatically presumed to have been motivated by the employer’s desire to avoid its responsibilities under the parental leave ordinance. Employers can rebut this presumption, but only with “clear and convincing evidence” that the termination was made for a different reason. This is a strict and exacting standard of proof that is very difficult to meet.
- Employers may apply up to two weeks of an employee’s accrued, unused vacation leave to the start of the worker’s parental leave period.
As a condition of receiving benefits under San Francisco’s parental leave law, workers must agree to reimburse all compensation received from their employer during leave if they voluntarily leave their job within 90 days of the end of the leave period.
- Employers must post a notice of workers’ rights under the Paid Parental Leave Ordinance. Similar to other employee rights notices, it must be posted conspicuously, and in multiple languages, at any place where any eligible employee works.
- Employers must keep records documenting payment of parental leave compensation to workers and retain those records for three years. If an employer fails to maintain proper records or keep them for the required amount of time, then it will be presumed that the employer violated the law. The presumption can only be rebutted with clear and convincing evidence that the employer did not violate the law.
Blazing a New Trail?
San Francisco has historically been a trailblazer in passing progressive, pro-worker laws that are quickly picked up in other parts of the country. In 2006, San Francisco voters approved the country’s first mandatory paid sick leave law. Since then, five states and more than 20 cities have followed suit. Similarly, in 2014, the city was among the first to approve a $15 hourly minimum wage – starting a trend that was followed by 14 other jurisdictions in 2015, and which currently is the subject of proposed legislation in more than a dozen localities. Already in 2016, California and New York have passed legislation that progressively increases each state’s minimum wage to $15 by 2022 and 2023, respectively.
San Francisco’s history of passing trendsetting, pro-worker laws suggests that employers across the country can expect a variety of legislative efforts in other cities and states to create paid parental leave laws.