DISPLACED WORKER PROTECTION

SF-LABOR pt. DIVISION I: PROTECTION OF WORKERS IN THE CITY, art. 71

in effect

SF Labor and Employment Code § 71.1 DEFINITIONS.

SEC. 71.1. DEFINITIONS. The following definitions shall apply throughout this Article 71: “Agency” means the Office of Labor Standards Enforcement or any successor department or office. “Awarding authority” means any person that awards or otherwise enters into contracts for security, janitorial, or building maintenance services performed within the City, except that the City is not an “awarding authority” under this Article with respect to City contracts for janitorial services as defined in Labor and Employment Code Section 102.2 or City contracts for security guard services as defined in Labor and Employment Code Section 102.11, because the worker retention requirements for those City contracts are governed by Section 102.1 of the Labor and Employment Code. “City” means the City and County of San Francisco. “Contractor” means any person that enters into a service contract with the awarding authority and who employs 25 or more persons. “Employee” means any person employed as a service employee of a contractor or subcontractor who works at least 15 hours per week and whose primary place of employment is in the City under a contract to provide security services, janitorial services, or building maintenance services for the awarding authority. “Employee” does not include a person who is (1) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (2) does not possess or has not maintained a required occupational license; or (3) is employed less than 15 hours per week. “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts. “Public sector contractor” means any person or persons, firm, partnership, corporation, or combination thereof, who enters into a contract with officers or employees empowered by law to enter into contracts for the City for the services governed by this Article. “Service contract” means a contract let to a contractor by the awarding authority for the furnishing of service (as opposed to the purchase of goods or other property) and that involves an expenditure or receipt in excess of $25,000 per contract and a contract term of at least three months. “Subcontractor” means any person not an employee who enters into a contract with the contractor to assist the contractor in performing a service contract and that employs employees for such person. “Successor service contract” means a service contract with the awarding authority where the services to be performed have previously been rendered to the awarding authority as part of the same program or at the same facility under another substantially similar service contract that recently has been terminated or has ended. (Added as Police Code Sec. 3300C.1 by Ord. 165-98, App. 5/21/98; amended by Ord. 12-12, File No. 111190, App. 2/2/12, Eff. 3/3/12; Ord. 211-16, File No. 160891, App. 10/28/16, Eff. 11/27/16; Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

SF Labor and Employment Code § 71.2 TRANSITION EMPLOYMENT PERIOD.

SEC. 71.2. TRANSITION EMPLOYMENT PERIOD. All service contracts covered by this Article 71 shall impose the following obligations on the contractor. (a) Where the awarding authority has given notice that a service contract has been terminated or ended, or where a service contractor has given notice of such termination, upon giving or receiving such notice, as the case may be, the terminated or ending contractor shall, within 10 days thereafter, provide to the successor contractor, the name, date of hire, and employment occupation classification of each employee employed at the site or sites covered by the prospective contractor at the time of contract termination. This provision shall also apply to the subcontractors of the terminated contractor. To facilitate the provision of this information, the awarding authority, following termination of a service contract and within three days of the hiring of a successor contractor, shall provide the name and address of the successor contractor to the terminated or ending contractor. If a successor service contract has not been awarded by the end of the 10-day period, the employment information referred to earlier in this subsection (a) shall be provided to the awarding authority at such time. Within three days of the hiring of a successor contractor, the awarding authority shall provide the employment information to the successor contractor 1 Where a subcontractor of a service contractor has been terminated prior to the termination of the service contract, the terminated subcontractor shall for purposes of this Article 71 be deemed a terminated contractor. (b) A successor contractor shall retain, for a 90-day transition employment period, employees who have been employed by the terminated contractor or its subcontractors, if any, for the preceding eight months or longer at the site or sites covered by the contract. This requirement shall be stated by the City in all initial bid packages which are governed by this Article 71. (c) If at any time a successor public sector contractor determines that fewer employees are required to perform the new service contract than were required by the terminated public sector contractor (and subcontractors, if any), the successor public sector contractor shall retain employees by seniority within job classification. (d) During such 90-day period, the successor contractor (or subcontractor, where applicable) shall maintain a preferential hiring list of eligible covered employees not retained by the successor contractor (or subcontractor) from which the successor contractor (or subcontractor) shall hire additional employees. (e) Except as provided in subsection (c) of this Section, during such 90-day period, the successor contractor (or subcontractor, where applicable) shall not discharge without cause an employee retained pursuant to this Article 71. “Cause,” for this purpose, shall include, but not be limited to, the employee’s conduct while in the employ of the terminated contractor or subcontractor that contributed to any decision to terminate the contract or subcontract for fraud or poor performance, excluding permissible union-related activity. (f) At the end of such 90-day period, a successor public sector contractor (or subcontractor, where applicable) shall perform a written performance evaluation for each employee retained pursuant to this Article 71. If the employee’s performance during such 90-day period is satisfactory, the successor public sector contractor (or subcontractor) shall offer the employee continued employment under the terms and conditions established by the public sector successor contractor (or subcontractor) or as required by law. (g) All contracts subject to this Article 71 shall include a provision in which the contractor agrees to require subcontractors to comply with the obligations imposed by this Article. (Added as Police Code Sec. 3300C.2 by Ord. 165-98, App. 5/21/98; amended by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; 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. 59-23.

SF Labor and Employment Code § 71.3 ENFORCEMENT.

SEC. 71.3. ENFORCEMENT. (a) Implementation. The Agency shall be authorized to coordinate implementation and enforcement of this Article 71 and may promulgate appropriate rules for such purposes. Any rules promulgated by the Agency shall have the force and effect of law and may be relied on by employers, employees, and other persons to determine their rights and responsibilities under this Article. Any rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Article, including supplementary procedures for helping to inform employees of their rights under this Article, for monitoring contractor, subcontractor, and awarding authority compliance with this Article, and for providing administrative hearings to determine whether a contractor, subcontractor, awarding authority, or other person has violated the requirements of this Article. (b) Administrative Enforcement. (1) The Agency is authorized to take appropriate steps to enforce this Article 71. The Agency may investigate any possible violations of this Article by an awarding authority, a successor contractor, or a successor contractor’s subcontractor. Where the Agency has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing. (2) Where the Agency determines that a violation has occurred, it may issue a determination of violation and order any appropriate relief including, but not limited to, back pay, including the value of benefits, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of: (i) The average regular rate of pay received by the employee during the last three years of the employee’s employment in the same occupation classification; or (ii) The final regular rate received by the employee. (3) Where the Agency determines that a violation has occurred, it may also authorize the payment of an additional sum as an administrative penalty to each employee or person whose rights under this Article 71 were violated. If any backpay is ordered, the dollar amount of the backpay multiplied by three, or $250, whichever amount is greater, shall be included in the administrative penalty paid to the employee. In addition, if a violation of this Article 71 resulted in other harm to the employee or any other person, or otherwise violated the rights of employees or other persons, this administrative penalty shall also include $50 to each employee or person whose rights under this Article were violated for each day or portion thereof that the violation occurred or continued. (4) Where prompt compliance is not forthcoming, the Agency may take any appropriate enforcement action to secure compliance, including initiating a civil action pursuant to Section 71.3(c) and/or, except where prohibited by State or Federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the violator until such time as the violation is remedied. In order to compensate the City for the costs of investigating and remedying the violation, the Agency may also order the violator to pay to the City a sum of not more than $50 for each day or portion thereof and for each employee or person as to whom the violation occurred or continued. Such funds shall be allocated to the Agency and used to offset the costs of implementing and enforcing this ordinance. (5) An employee or other person may report to the Agency any suspected violation of this Article 71. The Agency shall encourage reporting pursuant to this subsection (b)(5) by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee or person reporting the violation; provided, however, that with the authorization of such person, the Agency may disclose their name and identifying information as necessary to enforce this Article or for other appropriate purposes. (6) The remedies and penalties provided under subsections (b)(2) through (b)(4) are cumulative. (7) The determination of violation shall provide notice of the right to appeal the determination to the Controller, and that failure to do so within 15 days shall result in the determination becoming a final administrative decision. (8) The determination of violation shall specify a reasonable time period for payment of any relief ordered. The Agency may award interest on all amounts due and unpaid at the expiration of such time period at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, as may be amended from time to time. (9) The Agency may require that remedies and penalties due and owing to a person whose rights under this Article 71 were violated to be paid directly to the City for disbursement to the person. The Controller shall hold these funds in escrow for the person. The Agency shall make best efforts to distribute such funds. In the event such funds are unclaimed for a period of three years, the Controller may undertake administrative procedures for escheat of unclaimed funds under California Government Code Sections 50050 et seq., as may be amended from time to time. Subject to the budgetary and fiscal provisions of the Charter, such escheated funds shall be dedicated to the enforcement of this Article 71 or other laws the Agency enforces. (c) Civil Enforcement. (1) The City Attorney or an employee who has been discharged in violation of this Article 71 by a successor contractor or its subcontractor may bring an action in the Superior Court of the State of California against the successor contractor and, where applicable, the successor contractor’s subcontractor, and an employee may be awarded back pay, including the value of benefits, for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of: (A) The average regular rate of pay received by the employee during the last three years of the employee’s employment in the same occupation classification; or (B) The final regular rate received by the employee. (2) The City Attorney or an employee may bring an action in Superior Court of the State of California against the awarding authority, for an injunction requiring the awarding authority to satisfy its obligations under this Article 71. (3) If the City Attorney or the employee is the prevailing party in any such legal action, the Court shall award reasonable attorneys’ fees and costs as part of the costs recoverable. (d) Interest. In any administrative or civil action brought under this Article 71, the Agency or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, as amended from time to time. (Added as Police Code Sec. 3300C.3 by Ord. 165-98, App. 5/21/98; amended by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

SF Labor and Employment Code § 71.4 APPEAL PROCEDURE.1

[SEC. 71.4. APPEAL PROCEDURE.]1 (a) A person subject to a determination of violation of this Article 71 may file an appeal (“Appeal”) in accordance with the following procedures: (1) The person (“Appellant”) shall file the Appeal with the Controller and serve a copy on the Agency. The Appeal shall be filed in writing within 15 days of the date of service of the determination of violation, and shall specify the basis for the Appeal and shall request that the Controller appoint a hearing officer to hear and decide the Appeal. Failure to submit a timely written Appeal shall constitute concession, and the determination of violation shall be deemed the final administrative decision upon expiration of the 15-day period. Further, failure to submit a timely, written Appeal shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought against the City regarding the determination of violation. (2) Following the filing of the Appeal and service of a copy on the Agency, the Agency shall promptly afford the Appellant an opportunity to meet and confer in good faith regarding possible resolution of the determination of violation. (3) Within 30 days of receiving an Appeal, the Controller shall appoint an impartial hearing officer who is not part of the Agency and immediately notify the Agency and Appellant of the appointment. (4) The hearing officer shall promptly set a date for a hearing. The hearing shall commence within 45 days of the date of the Controller’s notice of appointment of the hearing officer, and conclude within 75 days of such notice; provided, however, that the hearing officer may extend these time limits for good cause. (5) The hearing officer shall conduct a fair and impartial evidentiary hearing. The Appellant shall have the burden of proving by a preponderance of the evidence that the Agency erred in its determination of violation, and/or the relief ordered therein. (6) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the determination of violation. The hearing officer’s decision shall be the final administrative decision. The decision shall consist of findings, a determination, any relief ordered, a reasonable time period for payment of any relief ordered, and notice to the Appellant of the right to appeal by filing a petition for a writ of mandate as described in subsection (a)(7), and that failure to file a timely Appeal shall result in the final administrative decision becoming enforceable as a judgment by the Superior Court. (7) The Appellant may appeal the final administrative decision only by filing in San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure, Section 1094.5 et seq., as applicable, and as may be amended from time to time. (b) Where an Appellant fails to comply with a final administrative decision within the time period required therein, the Agency may take any appropriate enforcement action to secure compliance, including referring the action to the City Attorney to seek enforcement of the final administrative decision in Superior Court and, except where prohibited by State or Federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the Appellant until such time as the violation is remedied. (Added as Police Code Sec. 3300C.4 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024) (Former Police Code Sec. 3300C.4 added by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.5 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated as Labor and Employment Code Sec. 71.5 by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024) CODIFICATION NOTE 1. Ord. 59-23 added Police Code Section 3300C.4 (now this Labor and Employment Code Section 71.4) without adding a heading. This heading has been included for ease of reference, with square brackets to indicate that it is unofficial.

SF Labor and Employment Code § 71.5 SUCCESSOR’S PRIOR EMPLOYEES.

SEC. 71.5. SUCCESSOR’S PRIOR EMPLOYEES. Notwithstanding the provisions of Section 71.2, a successor contractor or subcontractor may replace an employee retained pursuant to this Article with a person employed by the contractor or subcontractor continuously for eight months prior to the commencement of the successor service contract or subcontract in a capacity similar to that proposed under the successor service contract or subcontract. This Section shall apply only where the existing employee of the successor contractor or subcontractor would otherwise be laid off work as a result of the award of the successor contract. (Added as Police Code Sec. 3300C.4 by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.5 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024) (Former Police Code Sec. 3300C.5 added by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.6 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated as Labor and Employment Code Sec. 71.6 by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

SF Labor and Employment Code § 71.6 APPLICABILITY TO EXISTING CONTRACTS.

SEC. 71.6. APPLICABILITY TO EXISTING CONTRACTS. This Article shall only apply to contracts entered into on or after the effective date of this Article. (Added as Police Code Sec. 3300C.5 by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.6 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024) (Former Police Code Sec. 3300C.6 added by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.7 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated as Labor and Employment Code Sec. 71.7 by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

SF Labor and Employment Code § 71.7 SEVERABILITY.

SEC. 71.7. SEVERABILITY. If any severable provision or provisions of this Article or any application thereof is held invalid, such invalidity shall not affect any other provisions or applications of the Article that can be given effect notwithstanding such invalidity. (Added as Police Code Sec. 3300C.6 by Ord. 165-98, App. 5/21/98; redesignated as Police Code Sec. 3300C.7 by Ord. 59-23, File No. 230166, App. 4/21/2023, Eff. 5/22/2023; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

Source: City and County of San Francisco, Charter and Municipal Codes (American Legal Publishing, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/san_francisco/latest/sf_laboremployment/0-0-0-1656Fetched: 11/1/2026