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New worker-friendly sick leave requirements that become law in San Francisco on Feb. 5 have some employers’ lawyers scratching their heads. The ordinance, which passed by a wide margin in the November election, requires San Francisco employers to dole out paid sick time benefits to all of their workers who are “employed within the geographic boundaries of the city.” Among other provisions, it will require that employees accrue one hour of paid sick time for every 30 hours worked, up to certain limits. Some aspects of the law, known as Proposition F, are relatively uncomplicated, but employment lawyers say others are confusing and need to be spelled out by city officials. If employees accrue paid sick leave in one-hour increments, for example, are they entitled to use sick leave in one hour increments, or even fractions of an hour? And if the ordinance covers all San Francisco employers, does that include residents who pay someone to come in and tidy up their home for a few hours each month? “There are a lot of unanswered questions,” said Joshua Henderson, an associate in the labor and employment group at Nixon Peabody. “The best we can do at this point is just to provide very cautious advice and hope the city provides some guidance in the near future.” The city hasn’t yet issued regulations to fully explain the new law. So many lawyers are warning clients that they can’t answer such questions right now � and may not be able to until after the law takes effect. In the weeks since Proposition F was passed by voters, the city’s Office of Labor Standards Enforcement has been overwhelmed by inquiries about the new law. A Web page with information about the sick leave ordinance has generated 15,554 hits so far this month.
“I know the city attorney isn’t going to go after Jane Doe employer on Feb. 6. But I don’t know that John Doe lawyer isn’t going to go after Jane Doe em-ployer on Feb. 6.”

Senior Vice President Jim Lazarus, San Francisco Chamber of Commerce

With a Jan. 31 deadline looming for the office to issue guidelines for an earlier health care benefits law � one now facing a challenge in federal court � OLSE division manager Donna Levitt said her staff won’t have time to write regulations for the sick leave ordinance. “Unfortunately � there’s no possible way we could be working on regulations because we’ve been so busy answering phone calls,” she said. Her office intends to post answers to some frequently asked questions “in the coming days,” Levitt added. Besides the lack of guidance from city officials, what’s made the job of advising clients especially tricky for lawyers is that, under the new law, corporate executives can be held personally liable if their firm is found to be in violation. This aspect of the ballot measure forced lawyers at Seyfarth Shaw to review the law firm’s own employee policies and the policies of staffing agencies with which Seyfarth contracts, said G. Daniel Newland, a partner at that firm. “We’re looking at both of those as a precautionary measure � without necessarily conceding that this [law] will eventually pass muster,” Newland said. Some employers and their attorneys say one reason Prop F hasn’t been challenged in court so far is because the authors seemed to have anticipated many of the potential legal issues. Kevin Westlye, executive director of the Golden Gate Restaurant Association, said he reached an agreement with the author of the legislation, San Francisco Supervisor Chris Daly, on one section of the law that settled one of his members’ biggest concerns, i.e., how much notice workers would have to give their bosses in order to use paid sick leave. But sooner or later, management-side lawyers expect that some employer might sue over the section of the ordinance that requires they keep records of sick benefits for all employees, which is not currently mandated by law. Following that provision could put some clients in a bad position, defense lawyers say, because plaintiffs have used the existence of records like these in wage-and-hour litigation to show that employees are not part of management. “You get yourself in a Catch-22,” Newland said. Now just three weeks before employers have to comply with Prop F, their best chance to buy some time might lie with the San Francisco Chamber of Commerce. Jim Lazarus, senior vice president for the Chamber, said a top official who oversees the city budget told him if Prop F takes effect on schedule, the city itself would be out of compliance and exposed to potential litigation. Lazarus said he will formally ask the Board of Supervisors next week to delay implementation of the law for two or three months, or “whatever the [city] needs to come out with regulations that employers can rely on so they’re not subject to a third-party suit.” Daly, the supervisor who pushed for Prop F, said he wouldn’t support such a delay. “I know the city attorney isn’t going to go after Jane Doe employer on Feb. 6,” Lazarus added. “But I don’t know that John Doe lawyer isn’t going to go after Jane Doe employer on Feb. 6.”

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