San Francisco County Municipal Code Art. 41 Hours and Retention Protections

FOR FORMULA RETAIL EMPLOYEES* Sec. 41.1. Purpose. Sec. 41.2. Definitions. Sec. 41.3. Offering Additional Work to Part-time Employees. Sec. 41.4. Retention of Employees upon Change in Control. Sec. 41.5. Transition Employment Period.

Sec. 41.6. Notice of Change in Control. Sec. 41.7. Notice of Employee Rights. Sec. 41.8. Requirements Governing Retention of Records. Sec. 41.9. Retaliation Prohibited. Sec. 41.10. Investigation and Administrative Enforcement by the Agency. Sec. 41.11. Authority of Agency to Impose Administrative Fines. Sec. 41.12. Civil Enforcement. Sec. 41.13. Agency May Adopt Regulations. Sec. 41.14. No Limitation of Other Rights and Remedies. Sec. 41.15. Severability. Sec. 41.16. No Conflict with Federal or State Law. Sec. 41.17. Undertaking for the General Welfare. Sec. 41.18. Operative Date.

*Editor’s Note: Former Police Code Article 33F (“Hours and Retention Protections for Formula Retail Employees”) was redesignated as Labor and Employment Code Article 41 by Ord. 221- 23, File No. 230835, approved November 3, 2023, effective December 4, 2023, and operative January 4, 2024.

(a) If the Successor Employer determines that it requires fewer Eligible Employees than were employed by the Incumbent Employer, the Successor Employer shall retain Eligible Employees by seniority based on the date of hire by the Incumbent Employer or, if there is an applicable collective bargaining agreement, pursuant to that agreement. (b) During the 90-day transition employment period established in Section 41.4, the Successor Employer may not discharge without cause an Eligible Employee retained pursuant to this Article 41. (c) The Successor Employer may not employ any individual other than an Eligible Employee in the Eligible Employee’s job classification for the Formula Retail Establishment from the date that the Transfer Document is fully executed until 90 days after the Successor Employer opens the business to the public. (Added as Police Code Sec. 3300F.5 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) The Agency shall, no later than the operative date of this Article 41, publish and make available to Employers, in English, Spanish, Chinese, Tagalog, and any other language spoken by more than 5% of the San Francisco work force, a notice suitable for posting by Employers in the workplace informing Employees of their rights under this Article. The Agency shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco workforce. (b) Every Employer shall post in a conspicuous place at any workplace or job site where any of its Employees works the notice prepared by the Agency under subsection (a) informing Employees of their rights under this Article 41 in English, Spanish, Chinese, Tagalog and any other language spoken by at least five percent of the Employees at the workplace or job site. (Added as Police Code Sec. 3300F.7 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) Employers shall retain employment and payroll records pertaining to current and former Employees for no less than three years. (b) Employers shall retain copies of written offers to current and former Part-time Employees for additional work hours under Section 41.3 for no less than three years. (c) Each Successor Employer shall retain a copy of offers of employment to Eligible Employees required after a Change of Control as provided in Section 1300F.4 1 for no less than three years from the date that the Successor Employer made the offer. (d) Successor Employers shall retain the Retention List of Eligible Employees entitled to employment for the 90-day transition period for no less than three years from the date the Successor Employer received the list from the Incumbent Employer. (e) Employers, Incumbent Employers and Successor Employers shall allow the Agency access to records relating to their obligations under this Article 41, with appropriate notice and at a mutually agreeable time, to enable the Agency to monitor compliance with the requirements of this Article. (Added as Police Code Sec. 3300F.8 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024) CODIFICATION NOTE

1. So in Ord. 236-14.

It shall be unlawful for a Formula Retail Employer or any other Person to take adverse action against any person in retaliation for exercising rights protected under this Article 41. Rights protected under this Article include, but are not limited to: the right to file a complaint or inform any person about any party’s alleged noncompliance with this Article; and the right to inform any person of his or her potential rights under this Article and to assist him or her in asserting such rights. Protection of this Section 41.9 shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Article. Taking adverse action against a person within 90 days of the person’s exercise of rights protected under this Article shall raise a rebuttable presumption that the party taking the adverse action did so in retaliation for the exercise of such rights. (Added as Police Code Sec. 3300F.9 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

The City Attorney may bring a civil action in a court of competent jurisdiction against an Employer, an Incumbent Employer or a Successor Employer for violating any requirement of this Article and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of lost wages, the payment of an additional sum as a civil penalty not to exceed the amount awarded for lost wages, and reinstatement in employment and/or injunctive relief and shall be awarded reasonable attorneys’ fees and costs. (Added as Police Code Sec. 3300F.12 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

The Agency may promulgate appropriate guidelines or rules to implement this Article 41. Such guidelines or rules shall be consistent with this Article and may be relied on by Employers, Employees, and other persons to determine their rights and responsibilities under this Article. Such guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation and enforcement of this Article, including supplementary procedures for helping to inform Employees of their rights under this Article and for monitoring Employer compliance. (Added as Police Code Sec. 3300F.13 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

This Article 41 does not in any way limit the rights and remedies that the law otherwise provides to Employees, including but not limited to the rights to be free from wrongful termination and unlawful discrimination. (Added as Police Code Sec. 3300F.14 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

If any section, subsection, sentence, clause, phrase, or word of this Article 41, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Article. The Board of Supervisors hereby declares that it would have passed this Article and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Article

or application thereof would be subsequently declared invalid or unconstitutional. (Added as Police Code Sec. 3300F.15 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

Nothing in this Article 41 shall be interpreted or applied so as to create any right, requirement, power, or duty in conflict with any federal or state law. (Added as Police Code Sec. 3300F.16 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

In enacting and implementing this Article 41, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury. (Added as Police Code Sec. 3300F.17 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

This Article 41 shall become operative 180 days after its effective date. (Added as Police Code Sec. 3300F.18 by Ord. 236-14, File No. 140880, Eff. 1/4/2015, Oper. 7/3/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

For Employees of Formula Retail Establishments or Property Service Contractors covered by a bona fide collective bargaining agreement, all or any portion of the applicable requirements of this Article 41 shall not apply to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms. (Added as Police Code Sec. 3300F.19 by Ord. 117-15, File No. 150269, App. 7/15/2015, Eff. 8/14/2015; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(Added as Police Code Sec. 3300F.20 by Ord. 17-15, File No. 141265, App. 2/13/2015, Eff. 3/15/2015; expired 1/4/2016; redesignated in accordance with Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)