SEC. 12W.1. TITLE.

This Chapter shall be known as the "Sick Leave Ordinance."(Added by Proposition F, 11/7/2006)

SEC. 12W.2. DEFINITIONS.

For purposes of this Chapter, the following definitions apply.

(a) "Agency" shall mean the Office of Labor Standards Enforcement or any department or office that by ordinance or resolution is designated the successor to the Office of Labor Standards Enforcement.

(b) "City" shall mean the City and County of San Francisco.

(c) "Employee" shall mean any person who is employed within the geographic boundaries of the City by an employer, including part-time and temporary employees. "Employee" includes a participant in a Welfare-to-Work Program when the participant is engaged in work activity that would be considered "employment" under the federal Fair Labor Standards Act, 29 U.S.C. §201 et seq., and any applicable U.S. Department of Labor Guidelines. "Welfare-to-Work Program" shall include any public assistance program administered by the Human Services Agency, including but not limited to CalWORKS and the County Adult Assistance Program (CAAP), and any successor programs that are substantially similar to them, that require a public assistance applicant or recipient to work in exchange for their grant.

(d) "Employer" shall mean any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee.

(e) "Paid sick leave" shall mean paid "sick leave" as defined in California Labor Code § 233(b)(4), except that the definition extends beyond the employee's own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an employee for the purpose of providing care or assistance to other persons, as specified further in Section 12W.4(a), with an illness, injury, medical condition, need for medical diagnosis or treatment, or other medical reason.

(f) "Small business" shall mean an employer for which fewer than ten persons work for compensation during a given week. In determining the number of persons performing work for an employer during a given week, all persons performing work for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity.

(Added by Proposition F, 11/7/2006)

SEC. 12W.3. ACCRUAL OF PAID SICK LEAVE.

(a) For employees working for an employer on or before the operative date of this Chapter, paid sick leave shall begin to accrue as of the operative date of this Chapter. For employees hired by an employer after the operative date of this Chapter, paid sick leave shall begin to accrue 90 days after the commencement of employment with the employer.

(b) For every 30 hours worked after paid sick leave begins to accrue for an employee, the employee shall accrue one hour of paid sick leave. Paid sick leave shall accrue only in hour-unit increments; there shall be no accrual of a fraction of an hour of paid sick leave.

(c) For employees of small businesses, there shall be a cap of 40 hours of accrued paid sick leave. For employees of other employers, there shall be a cap of 72 hours of accrued paid sick leave. Accrued paid sick leave for employees carries over from year to year (whether calendar year or fiscal year), but is limited to the aforementioned caps.

(d) If an employer has a paid leave policy, such as a paid time off policy, that makes available to employees an amount of paid leave that may be used for the same purposes as paid sick leave under this Chapter and that is sufficient to meet the requirements for accrued paid sick leave as stated in subsections (a)-(c), the employer is not required to provide additional paid sick leave.

(e) An employer is not required to provide financial or other reimbursement to an employee upon the employee's termination, resignation, retirement, or other separation from employment, for accrued paid sick leave that the employee has not used.

(Added by Proposition F, 11/7/2006)

SEC. 12W.4. USE OF PAID SICK LEAVE.

(a) An employee may use paid sick leave not only when he or she is ill or injured or for the purpose of the employee's receiving medical care, treatment, or diagnosis, as specified more fully in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis: Child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person. The employee may use all or any percentage of his or her paid sick leave to aid or care for the aforementioned persons. The aforementioned child, parent, sibling, grandparent, and grandchild relationships include not only biological relationships but also relationships resulting from adoption; step-relationships; and foster care relationships. "Child" includes a child of a domestic partner and a child of a person standing in loco parentis.

If the employee has no spouse or registered domestic partner, the employee may designate one person as to whom the employee may use paid sick leave to aid or care for the person. The opportunity to make such a designation shall be extended to the employee no later than the date on which the employee has worked 30 hours after paid sick leave begins to accrue pursuant to Section 12W.3(a). There shall be a window of 10 work days for the employee to make this designation. Thereafter, the opportunity to make such a designation, including the opportunity to change such a designation previously made, shall be extended to the employee on an annual basis, with a window of 10 work days for the employee to make the designation.

(b) An employer may not require, as a condition of an employee's taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave.

(c) An employer may require employees to give reasonable notification of an absence from work for which paid sick leave is or will be used.

(d) An employer may only take reasonable measures to verify or document that an employee's use of paid sick leave is lawful.

(Added by Proposition F, 11/7/2006)

SEC. 12W.5. NOTICE AND POSTING.

(a) The Agency shall, by the operative date of this Chapter, publish and make available to employers, in all languages spoken by more than 5% of the San Francisco workforce, a notice suitable for posting by employers in the workplace informing employees of their rights under this Chapter. 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. In its discretion, the Agency may combine the notice required herein with the notice required by Section 12R.5(a) of the Administrative Code.

(b) Every employer shall post in a conspicuous place at any workplace or job site where any employee works the notice required by subsection (a). Every employer shall post this notice in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the workplace or job site.

(Added by Proposition F, 11/7/2006)

SEC. 12W.6. EMPLOYER RECORDS.

Employers shall retain records documenting hours worked by employees and paid sick leave taken by employees, for a period of four years, and shall allow the Agency access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. When an issue arises as to an employee's entitlement to paid sick leave under this Chapter, if the employer does not maintain or retain adequate records documenting hours worked by the employee and paid sick leave taken by the employee, or does not allow the Agency reasonable access to such records, it shall be presumed that the employer has violated this Chapter, absent clear and convincing evidence otherwise.

(Added by Proposition F, 11/72006)

SEC. 12W.7. EXERCISE OF RIGHTS PROTECTED; RETALIATION PROHIBITED.

It shall be unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Chapter.

It shall be unlawful for an employer or any other person to discharge, threaten to discharge, demote, suspend, or in any manner discriminate or take adverse action against any person in retaliation for exercising rights protected under this Chapter. Such rights include but are not limited to the right to use paid sick leave pursuant to this Chapter; the right to file a complaint or inform any person about any employer's alleged violation of this Chapter; the right to cooperate with the Agency in its investigations of alleged violations of this Chapter; and the right to inform any person of his or her potential rights under this Chapter.

It shall be unlawful for an employer absence control policy to count paid sick leave taken under this Chapter as an absence that may lead to or result in discipline, discharge, demotion, suspension, or any other adverse action.

Protections of this Chapter shall apply to any person who mistakenly but in good faith alleges violations of this Chapter.

Taking adverse action against a person within 90 days of the person's filing a complaint with the Agency or a court alleging a violation of any provision of this Chapter; informing any person about an employer's alleged violation of this Chapter; cooperating with the Agency or other persons in the investigation or prosecution of any alleged violation of this Chapter; opposing any policy, practice, or act that is unlawful under this Chapter; or informing any person of his or her rights under this Chapter shall raise a rebuttable presumption that such adverse action was taken in retaliation for the exercise of one or more of the aforementioned rights.

(Added by Proposition F, 11/7/2006)

SEC. 12W.8. IMPLEMENTATION AND ENFORCEMENT.

(a) Implementation. The Agency shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or 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 Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform employees of their rights under this Chapter, for monitoring employer compliance with this Chapter, and for providing administrative hearings to determine whether an employer or other person has violated the requirements of this Chapter.

(b) Administrative Enforcement. The Agency is authorized to take appropriate steps to enforce this Chapter. The Agency may investigate any possible violations of this Chapter by an employer or other person. 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.

Where the Agency, after a hearing that affords a suspected violator due process, determines that a violation has occurred, it may order any appropriate relief including, but not limited to, reinstatement, back pay, the payment of any sick leave unlawfully withheld, and the payment of an additional sum as an administrative penalty to each employee or person whose rights under this Chapter were violated. If any paid sick leave was unlawfully withheld, the dollar amount of paid sick leave withheld from the employee multiplied by three, or $250.00, whichever amount is greater, shall be included in the administrative penalty paid to the employee. In addition, if a violation of this Chapter resulted in other harm to the employee or any other person, such as discharge from employment, or otherwise violated the rights of employees or other persons, such as a failure to post the notice required by Section 12W.5(b), or an act of retaliation prohibited by Section 12W.7, this administrative penalty shall also include $50.00 to each employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued.

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 12W.8(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 employer or person 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 violating employer or person to pay to the City a sum of not more than $50.00 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 Chapter.

An employee or other person may report to the agency any suspected violation of this Chapter. The Agency shall encourage reporting pursuant to this subsection 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 his or her name and identifying information as necessary to enforce this Chapter or for other appropriate purposes.

(c) Civil Enforcement. The Agency, the City Attorney, any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the public as provided for under applicable State law, may bring a civil action in a court of competent jurisdiction against the employer or other person violating this Chapter and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, but not limited to, reinstatement, back pay, the payment of any sick leave unlawfully withheld, the payment of an additional sum as liquidated damages in the amount of $50.00 to each employee or person whose rights under this Chapter were violated for each hour or portion thereof that the violation occurred or continued, plus, where the employer has unlawfully withheld paid sick leave to an employee, the dollar amount of paid sick leave withheld from the employee multiplied by three; or $250.00, whichever amount is greater; and reinstatement in employment and/or injunctive relief; and, further, shall be awarded reasonable attorneys' fees and costs. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable State law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief, and reasonable attorneys' fees and costs.

(d) Interest. In any administrative or civil action brought under this Chapter, 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.

(e) Remedies Cumulative. The remedies, penalties, and procedures provided under this Chapter are cumulative.

(Added by Proposition F, 11/7/2006)

SEC. 12W.9. WAIVER THROUGH COLLECTIVE BARGAINING.

All or any portion of the applicable requirements of this Chapter shall not apply to employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

(Added by Proposition F, 11/7/2006)

SEC. 12W.10. OTHER LEGAL REQUIREMENTS.

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater accrual or use by employees of sick leave, whether paid or unpaid, or that extends other protections to employees.

(Added by Proposition F, 11/7/2006)

SEC. 12W.11. MORE GENEROUS EMPLOYER LEAVE POLICIES.

This Chapter provides minimum requirements pertaining to paid sick leave and shall not be construed to prevent employers from adopting or retaining leave policies that are more generous than policies that comply with this Chapter. Employers are encouraged to provide more generous leave policies than required by this Chapter.

(Added by Proposition F, 11/7/2006)

SEC. 12W.12. OPERATIVE DATE.

This Chapter shall become operative 90 days after its adoption by the voters at the November 7, 2006 election. This Chapter shall have prospective effect only.

(Added by Proposition F, 11/7/2006)

SEC. 12W.13. PREEMPTION.

Nothing in this Chapter shall be interpreted or applied so as to create any power or duty in conflict with federal or state law.

(Added by Proposition F, 11/7/2006)

SEC. 12W.14. CITY UNDERTAKING LIMITED TO PROMOTION OF GENERAL WELFARE.

In undertaking the adoption and enforcement of this Chapter, the City is undertaking only to promote the general welfare. The City 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. This Chapter does not create a legally enforceable right by any member of the public against the City.

(Added by Proposition F, 11/72006)

SEC. 12W.15. SEVERABILITY.

If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provision to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.

(Added by Proposition F, 11/7/2006)

SEC. 12W.16. AMENDMENT BY THE BOARD OF SUPERVISORS.

The Board of Supervisors may amend this Chapter with respect to matters relating to its implementation and enforcement (including but not limited to those matters addressed in Section 12W.8) and matters relating to employer requirements for verification or documentation of an employee's use of sick leave, but not with respect to this Chapter's substantive requirements or scope of coverage; provided, however, that, in the event any provision in this Chapter is held legally invalid, the Board retains the power to adopt legislation concerning the subject matter that was covered in the invalid provision.

(Added by Proposition F, 11/7/2006)

Sec. 16.10. Definitions.

(a) "Continuous service" for vacation allowance purposes means paid service pursuant to a regular work schedule which is not interrupted by a breach in service and shall include periods of unpaid furlough in accordance with a Civil Service Rule governing voluntary and involuntary furloughs.

(b) "Employee" means "Every person employed in the City and County service" which, as used in Charter Section 8.440 includes the classified employees of the City and County of San Francisco as provided in Section 3.661 of the Charter and classified personnel of the San Francisco Unified School District and Community College District, and officers, other than elected officers.

(c) "Irregular work schedule" means a work schedule for which the frequency and length is determined solely by the immediate or imminent needs of the service and which is subject to change at any time. Service in an irregular schedule does not constitute continuous service for vacation purposes.

(d) "Maximum vacation entitlement" means the maximum vacation allowance an employee may earn in any 12 month period. The amount is based on years of continuous service as follows:

(e) "Paid service" means service in paid status with the City and County of San Francisco, the San Francisco Unified School District or the Community College District, as applicable, and includes hours paid as sick leave, vacation, compensatory time-off and overtime for employees who are eligible for overtime pay under the administrative provisions of the Annual Salary Standardization Ordinance.

(f) "Regular work schedule" means a work schedule consisting of a pre-determined and fixed number of hours to be worked on a routine basis and includes an authorized flex-time schedule.

(g) "Temporary disability" means temporary disability pursuant to the Worker's Compensation or State Disability Laws of the State of California or the industrial disability provisions of Charter Sections 8.515 or 8.516.

(h) "Vacation allowance" means the leave with pay for vacation purposes which an employee accrues or is awarded under the terms of this ordinance.

(i) "Vacation with pay" means the compensation the employee would have earned during the vacation period if the employee had worked during the same period, without the inclusion of overtime earnings or special pay.

(j) "Unpaid furlough" means voluntary or involuntary time off without pay imposed or approved in accordance with a Civil Service Rule governing unpaid furloughs in response to a projected budgetary shortfall.

(Amended by Ord. 182-85, App. 4/12/85; amended by Ord. 54-93, App. 3/4/93)

Sec. 16.11. Calculation Of Vacations.

(a) No employee is entitled to a vacation allowance until the employee has completed one year of continuous service.

(b) For purposes of determining the vacation allowance the anniversary date for an employee shall be the first date of employment in the current period of continuous service.

(c) Continuous service shall not be deemed to have been breached:

(1) By an employee because of absence from service due to duly authorized leave; or

(2) By a permanent employee laid off due to lack of work or funds, provided the employee is reappointed to a position in the service with a regular work schedule within five years of lay-off; or

(3) By a permanent school term employee because of a period when schools are not normally in session; or

(4) By a permanent employee who resigns in good standing and is reappointed to a position in the service with a regular work schedule within six months from the effective date of resignation; or

(5) By a temporary or provisional (noncivil service or limited tenure) employee who has completed one year of continuous service and resigns in good standing or is laid off and is reappointed to a position in the service with a regular work schedule within six months from the effective date of resignation or layoff; or

(6) By an employee who has resigned from a position with services certified as other than satisfactory by the appointing officer if the employee is granted reappointment rights by the Civil Service Commission and is reappointed to a position in the service with a regular work schedule within six months from the effective date of resignation;

(7) By a period of voluntary or involuntary furlough without pay imposed or approved in accordance with a Civil Service Rule governing unpaid furloughs in response to a projected budgetary shortfall.

(d) Without regard to any other provisions in this Section, no vacation allowance is earned for paid service in an irregular work schedule.

(e) An employee who has completed one year of continuous service shall accrue vacation allowance at the rate of .0385 of an hour for each hour of qualifying service. An employee who has completed five years of continuous service shall accrue thereafter a vacation allowance at a rate of .0577 of an hour for each hour of paid service. An employee who has completed 15 years of continuous service shall accrue a vacation allowance a rate of .077 of an hour for each hour of paid service.

(f) No employee shall be credited with more than 2080 hours of paid service in any 12 month period for purposes of computing the vacation allowance.

(g) The vacation allowance for an employee receiving temporary disability benefits shall be computed on the basis of the number of hours in the employee's regular work schedule; provided, however, that an employee not supplementing State Disability Insurance payments with earnings from paid service will not accrue a vacation allowance during the period of disability. An employee who has received a permanent disability award and who does not return to employment because of such disability is not entitled to accrue a vacation allowance.

(h) For members of the uniformed force of the Fire Department, the factors for earning vacation allowance, the maximum number of hours credited for vacation allowance purposes and the maximum number of vacation hours an employee may accrue shall be administered in a manner consistent with the intent of this ordinance and approved by the General Manager, Personnel. In addition, if necessary because of minimum daily staffing requirements and the financial and scheduling problems created in bringing the uniformedforce into conformity with Section 16.12(e) and (f), the Fire Department may establish an alternative schedule or other means for decreasing in an equitable manner the maximum accrual of vacation allowance to an amount consistent with that permitted other City employees under Section 16.12(e) no later than December 31, 1989. If the Fire Department establishes an alternative schedule, it may not permit a member of the uniformed force to accrue vacation days or hours in excess of the following:

(i) Any dispute over whether an employee is assigned to a regular or an irregular work schedule shall be finally decided by the Civil Service Commission.

(Amended by Ord. 182-85, App. 4/12/85; Ord. 54-93, App. 3/4/93)

Sec. 16.12. Award and Accrual of Vacation.

(a) Beginning with the first full pay period after the effective date of this ordinance, an employee shall be awarded the employee's vacation allowance on the first day of the pay period following the pay period in which the allowance is accrued.

(b) An employee does not accrue vacation allowance in the first year of continuous service, however, at the end of one year of continuous service, an employee shall be awarded a vacation allowance computed at the rate of .0385 of an hour for each hour of paid service in the preceding year.

(c) At the end of five years of continuous service, an employee shall be awarded a one-time vacation allowance computed at the rate of .01924 of an hour for each hour of paid service in the preceding year except that the amount of the vacation allowance shall not exceed 40 hours.

(d) At the end of fifteen years of continuous service, an employee shall be awarded a one-time vacation allowance computed at the rate of .01924 of an hour for each hour of paid service in the preceding year except that the amount of the vacation allowance shall not exceed 40 hours.

(e) The maximum number of vacation hours an employee may accrue consists of 240 hours carried forward from prior years plus the employee's maximum vacation entitlement which is based on the number of years of service. The maximum number of vacation hours which an employee may accrue is as follows:

(f) On the first day of the second pay period following the effective date of this ordinance, employees shall be awarded any vacation allowance accrued between January 1, 1985, and the first day of the second pay period following the effective date of this ordinance. In order to prevent employees from unfairly losing accrued vacation allowance in the transition from an award date of January 1st of each year, the limitation on the number of vacation hours an employee may accrue as set forth in Subsection 16.12(e) shall not apply between the effective date of this ordinance and January 9, 1987. Vacation allowance hours in excess of those set forth in Section 16.12(e) will be lost if not used before January 9, 1987.

(Amended by Ord. 97-86, App. 3/27/86)

Sec. 16.13. Effect Of Separation Upon Vacation.

An employee in the final year of service may with the approval of the appointing officer elect to receive a cash payment in lieu of vacation due at the time of separation, provided that the appointment and payment of a replacement for the period of time representing such cash payment in lieu of vacation is not required. In lieu of such cash payment an employee who separates from City and County service and who without interruption in service is appointed to any governmental agency whose employees are eligible for membership in the San Francisco City and County Retirement System may elect to transfer such accumulated vacation to such agency if the agency rule or regulation permits the crediting of such accumulated vacation.

(Amended by Ord. 182-85, App. 4/12/85)

Sec. 16.14. Vacation Schedules.

(a) Appointing officers are responsible for approving vacation schedules. In approving vacation schedules, the appointing officers shall give due regard to employee seniority and preference and the needs of the service. Unless an emergency situation exists requiring the immediate presence of an employee, an employee shall be allowed to begin a vacation on the day immediately following the employee's normal day off.

(b) With the approval of the appointing officer, an employee's vacation allowance may be taken in increments of not less than one hour.

(c) Except as requested by the employee to supplement disability benefits, the vacation allowance of an employee, who has started a vacation and who suffers a nonindustrial injury or illness or a recurrence of an industrial injury or illness during such vacation and who is entitled to and receives temporary disability benefits, shall not be charged for periods in which the employee receives disability benefits.

(d) Every department shall maintain records which shall include, in addition to all other information required by the Civil Service Commission and Controller, the employee's accrued vacation allowance. When an employee accepts a permanent appointment to another department, the employee's vacation and sick leave records shall be transferred by the first department to the second department. Ninety calendar days after an automated payroll/personnel data system is fully implemented in a department, and, upon approval of the General Manager, Personnel, and the Controller, the maintenance of such records by the department shall no longer be required. All records shall, however, continue to be preserved according to present statutory requirements.

(Amended by Ord. 182-85, App. 4/12/85)

Sec. 16.15. Use of Partial Vacation to Supplement Disability Leave.

An employee who is absent from duty because of temporary disability may use his or her vacation allowance to supplement disability benefits; provided, that when the vacation allowance payment is added to the disability benefits payable under the Workers' Compensation or State Disability Insurance Laws, the employee's bi-weekly payment will not exceed the normal salary of the employee for the regular work schedule effective at the commencement of the disability. An employee desiring to use his or her vacation allowance to supplement State Disability Insurance benefits shall, within seven calendar days following the first day of absence, and on a form provided by the Civil Service Commission, so inform his or her appointing officer or designated representative. Notwithstanding the foregoing, an employee receiving temporary workers' compensation disability benefits may accrue vacation hours in excess of the maximum accrual permitted pursuant to Section 16.12(e). Upon the cessation of the employee's receipt of temporary disability benefits the employee shall receive a cash payment for any vacation hours accrued in excess of the number the employee was permitted to accrue pursuant to Section 16.12(e).

(Amended by Ord. 182-85, App. 4/12/85)

Sec. 16.16. Vacation Charges Between Departments.

The Controller shall establish procedures for the method of payment of salaries to employees entitled to vacation from service in two or more departments of the City and County.

(Added by Ord. 316-81, App. 6/1

Sec. 16.170. Entitlement Defined.

Whenever any officer or employee of the City and County of San Francisco, other than an officer or employee to whom the disability benefit provisions of Section 8.515 of the Charter are applicable, is incapacitated for the performance of his or her duty by reason of bodily injury or illness received in the performance of his or her duty and caused by an act of criminal violence he or she shall become entitled, regardless of his or her period of service with the City and County, to disability benefits equal to and in lieu of his or her salary, while so disabled, for a period or periods not exceeding 12 months in the aggregate with respect to any one such injury or illness. The entitlement of such officer or employee to the disability benefits provided in this Section shall be determined by the Civil Service Commission.

Said disability benefits shall be reduced in the manner provided in Section 16.84 of this Code by the amount of any benefits, other than medical benefits, payable to such officer or employee under the Labor Code of the State of California concurrently with said disability benefits and because of the injury or illness resulting in said disability. Such disability benefits as are paid under this Section shall be considered as in lieu of any benefits, other than medical benefits, payable to such officer or employee under said Labor Code and shall be in satisfaction and discharge of the obligation of the City and County to pay such benefits.

Such disability benefits as are paid under this Section shall be considered as in lieu of any benefits payable to such employee by the City and County under any sick leave rule or other wage-continuation program provided by the City and County and shall be in satisfaction and discharge of the obligation of the City and County to pay such benefits.

(Added by Ord. 31-72, App. 2/16/72)

Sec. 21.25. Prevailing Rate Of Wages In Motor Bus Service Contracts.

In the case of any contract for Services wherein motor bus service is to be rendered to the general public on any facility owned by the City, or in the case of any contract for the transportation within the boundaries of the City of any Commodities owned or in the possession of the City, the Purchaser, on recommendation of the department head concerned and approval of the Mayor or the Mayor's designee or the board or commission in charge of such department upon the ground that the public interest would be best served by requiring the inclusion of such a provision in the contract, may require that any person performing labor thereunder shall be paid not less than the highest general prevailing rate of wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the contract is being performed, as determined by the Civil Service Commission; provided, however, if such a provision is to be included in the contract the notice inviting offers under Section 21.2 of this Code must call attention of Offerors to the requirements of said provision.
(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

Sec. 21.25-1. Prevailing Rate of Wages Required In Contracts for Janitorial Services; Nonprofit Organizations Exclusion; Small Business Exclusion.

Every Contract issued by the City and County of San Francisco for Janitorial Services to be performed at any facility owned or leased by the City and County of San Francisco, where such work is to be done directly under the contract awarded (a "prime contract") must require that any individual performing Janitorial Services thereunder be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract is being performed, as determined by the Civil Service Commission.

(a) Exclusions. This Section shall not apply to the following:

(1) Non-Profit Exclusion. This Section shall not apply to a Contract where the Janitorial Services are to be performed by a non-profit organization that provides job training and work experience for disadvantaged individuals in need of such training.

(2) Small Business Exclusion. This Section shall not apply to any contracting party employing fewer than 10 employees. For purposes of this exclusion, the term "employees" excludes owner-operators and members of an owner-operator's Immediate Family.

(b) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contract" shall mean an agreement for Janitorial Services to be performed at the expense of the City and County of San Francisco or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City and County of San Francisco, and does not include property contracts, contracts for the sale of goods, subcontracts, contracts issued by the San Francisco Airport Commission or to be performed at any facility owned, leased or otherwise under the jurisdiction of the San Francisco Airport Commission, agreements entered into before the effective date of this Section, or contracts for a cumulative amount of $10,000 or less per janitorial service provider in each fiscal year.

(2) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract on behalf of the City and County of San Francisco.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract with the City and County of San Francisco.

(4) "Immediate Family" shall mean grand-parents, grandchildren, parents, children, brothers and sisters, spouses and domestic partners, nieces and nephews, and aunts and uncles.

(5) "Janitorial Services" shall mean maintenance and cleaning services on property owned or leased by the City and County of San Francisco.

(6) "Person" shall include any individual, firm, proprietorship, partnership, corporation or combination thereof.

(7) "Prevailing Rate of Wages" shall mean that rate of compensation being paid to a majority of workers engaged in a specified category of personal services, if a majority of such workers be paid at a single rate; if there be no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid the greatest number of workers.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime contract or lease.

(c) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for Janitorial Services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, on or before the first Monday in November of each year, data as to the Prevailing Rate of Wages for Janitorial Services as paid in private employment in the City and County of San Francisco, including wages for overtime and holiday work, and the Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for Janitorial Services as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(d) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for Janitorial Services may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the contract, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to individuals performing Janitorial Services under a Contract for Janitorial Services, the Contractor shall have "cured the violation" once the Contractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the contract, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer may assess a penalty (a "willful violation penalty") in an amount not more than10 percent of the dollar amount of the contract, such sums to be deposited in the fund out of which the Contract is awarded. The Contracting Officer may impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(e) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract for Janitorial Services conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Contract for Janitorial Services that do not conflict with the collective bargaining agreement.

(f) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(g) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing agreement to which the City is a party, unless such pre-existing agreement has been amended after the effective date of this Section.

(h) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.
(Added by Ord. 222-99, File No. 990877, App. 8/6/99)

Sec. 21.25-2. Prevailing Rate Of Wages And Displaced Work Protection Required For Workers In Public Off-Street Parking Lots, Garages, Or Storage Facilities For Automobiles.

Every Lease, Management Agreement, or Other Contractual Arrangement for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco must require that any Employee working in such public off street parking lot, garage, or storage facility for automobiles be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Lease, Management Agreement, or Other Contractual Arrangement is being performed, as determined by the Civil Service Commission.

(a) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Lease, Management Agreement, or Other Contractual Arrangement for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco.

(2) "Contractor" shall mean any Person who submits a bid and/or enters into a Lease, Management Agreement, or Other Contractual Arrangement with the City and County of San Francisco for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco as set forth in this Section.

(3) "Employee" shall mean any individual per-forming work in one of the following classifications: Washing; Polishing; Lubrication; Rent-Car Service; Parking Vehicles; Cashiers; Attendants; Checking Coin Boxes; Non-Attendant Parking Lot Checking; Daily Ticket Audit; Traffic Directors; Shuttle Drivers; and all other incidental duties, whose primary place of employment is in public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco for the Contractor. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (b) does not possess or has not maintained a required occupational license.

(4) "Lease, Management Agreement, or Other Contractual Arrangement" shall mean an agreement with the City and County of San Francisco for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco.

(5) "Person" shall mean an individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts, or any combination thereof.

(6) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers engaged in the area in which the Lease, Management Agreement, or Other Contractual Arrangement is being performed, if a majority of such workers are paid at a single rate; if there is no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid to the greatest number of workers.

(7) "Public Off-Street Parking Lot, Garage, or Automobile Storage Facility" shall mean any off-street parking lot, garage, or automobile storage facility that is operated on property owned or leased by the City and County of San Francisco.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime Lease, Management Agreement, or Other Contractual Arrangement.

(b) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for individuals working in off-street parking lots, garages, or automobile storage facility, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, within 60 days after the effective date of this Section, and on or before the first Monday in November of each subsequent year, data as to the Prevailing Rate of Wages for individuals working in off-street parking lots, garages, or automobile storage facilities as paid in private employment in the City and County of San Francisco, including wages or overtime and holiday work, and the Board Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for individuals working in off-street parking lots, garages, or automobile storage facilities as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages Maid in private employment for similar work, until the same is changed by the Board of Supervisors.
In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(c) Transition Employment Period. All Leases, Management Agreements, or Other Contractual Arrangements covered by this Section shall impose the following obligations on the Contractor for Employees who work at least 15 hours per week

(1) Where the Contracting Officer has given notice that a Lease, Management Agreement, or Other Contractual Arrangement has been terminated or ended, or where a 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 ten days thereafter, provide to the successor Contractor, the name, date of hire, and employment occupation classification of each Employee who work at least 15 hours per week employed at the site or sites covered by the prospective Contractor at the time of the Lease, Management Agreement, or Other Contractual Arrangement termination. This provision shall also apply to the subcontractors of the terminated Contractor.

If the terminated Contractor has not learned the identity of the successor Contractor, if any, by the time that notice was given of the Lease, Management Agreement, or Other Contractual Arrangement termination, the terminated Contractor shall obtain such information from the Contracting Officer. If a successor Contractor has not been awarded by the end of the 10 day period, the employment information referred to earlier in this subsection shall be provided to the Contracting officer at such time. Where a subcontractor has been terminated prior to the termination of the Contract, the terminated Subcontractor shall for the purposes of this Section be deemed a terminated Contractor.

(2) A successor Contractor shall retain, for a 90 day transition employment period, Employees who have worked at least 15 hours per week and have been employed by the terminated Contractor or its subcontractors, if any, for the preceding twelve months or longer at the site or sites covered by the Lease, Management Agreement, or Other Contractual Arrangement, providing that just cause does not exist to terminate such Employee. The predecessor contractor's Employees who worked at least 15 hours per week shall be employed in order of their seniority with the predecessor. This requirement shall be stated by the City in all initial bid packages involving Leases, Management Agreements, or Other Contractual Arrangements governed by this section.

(3) If at any time a successor Contractor determines that fewer Employees are required to perform the new Contact than were required by the terminated Contractor (and subcontractors, if any), the successor Contractor shall retain Employees by seniority within job classification.

(4) 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.

(5) Except as provided in Subsection (3) of above, during such 90 day period, the successor Contractor (or subcontractor, where applicable) shall not discharge without cause an Employee retained pursuant to this Section. "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.

(6) At the end of such 90 day period, a successor Contractor (or subcontractor, where applicable) shall perform a written performance evaluation for each Employee retained pursuant to this Section. If the Employee's performance during such 90 day period is satisfactory, the successor Contractor (or subcontractor) shall offer the Employee continued employment under the terms and conditions established by the successor Contractor (or sub-contractor) or as required by law.

(7) All contracts subject to this Section include a provision in which the contractor agrees to require subcontractor to comply with the obligation imposed by this Section.

(d) Enforcement.

(1) An Employee who has not been hired or has been discharged in violation of this Section by a successor Contractor or its subcontractor may bring an action in the Superior Court of the State of California, as appropriate, against the successor Contractor and, where applicable, its subcontractor, and shall 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:

(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.

(2) If the Employee is the prevailing party in any such legal action, the Court shall award reasonable attorney's fees and costs as part of the costs recoverable.

(3) This Section is not intended to create a private right of action against the City and County of San Francisco.

(4) Successor's Prior Employees. Notwithstanding the provisions of Subsection (c) above, a successor Contractor or subcontractor may replace an Employee otherwise entitled to be retained pursuant to this Section with a person employed by the Contractor or subcontractor continuously for twelve months prior to the commencement of the successor Contract or subcontract in a capacity similar to that proposed under the successor 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.

(e) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for the operation of a public off-street parking lot, garage, or automobile storage facility may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the Lease, Management Agreement, or Other Contractual Arrangement, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to Employees working in public off-street parking lots or garages, the Contractor shall have "cured the violation" once the Contractor reimburses such Employees by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Lease, Management Agreement, or Other Contractual Arrangement, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer shall assess a penalty (a "willful violation penalty") in the sum of $50 per day for each Employee for each day the Contractor or Subcontractor fails to pay the Prevailing Rate of Wages, such sums to be deposited in the fund out of which the Lease, Management Agreement, or Other Contractual Arrangement is awarded. The Contracting Officer shall impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(f) Collective Bargaining Agreements. Not-withstanding anything to the contrary in this Section, if a Lease, Management Agreement, or Other Contractual Arrangement conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Lease, Management Agreement, or Other Contractual Arrangement that do not conflict with the collective bargaining agreement.

(g) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(h) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have, prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing Lease, Management Agreement, or Other Contractual Arrangement to which the City and County of San Francisco is a party, unless such pre-existing Lease, Management Agreement, or Other Contractual Arrangement has been amended after the effective date of this Section.

(i) Public Entities with Coterminous Boundaries with the City and County of San Francisco. It is the policy of the City and County of San Francisco that all public entities with coterminous boundaries with the City and County of San Francisco, including but not limited to the Parking Authority of the City and County of San Francisco, adopt this prevailing wage and employee transition period policy. The Board of Supervisors of the City and County of San Francisco urges all public entities with coterminous boundaries with the City and County of San Francisco, including but not limited to the Parking Authority of the City and County of San Francisco, to adopt this prevailing wage and employee transition period policy.

(j) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 3-03, File No. 021504, App. 1/24/2003)

Sec. 21.25-3. Prevailing Rate Of Wages Required For Theatrical Workers.

Every Contract, Lease, Franchise, Permit, or Agreement awarded, let, issued, or granted by the City and County of San Francisco for the use of property owned by the City and County of San Francisco must require that any Employee engaged in theatrical or technical services related to the presentation of a show, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract, Lease, Franchise, Permit or Agreement is being performed. All Contracts, Leases, Franchises, Permits or Agreements subject to this Section shall include a provision in which the Contractor agrees to comply with, and to require Subcontractors to comply with, the obligations imposed by this Section.

(a) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract, Lease, Franchise, Permit, or Agreement for the operation of property owned by the City and County of San Francisco.

(2) "Contract, Lease, Franchise, Permit, or Agreement" shall mean an agreement with the City and County of San Francisco for the use of property owned by the City and County of San Francisco, but shall not include any contract, lease, franchise, permit, or agreement for:

A. Celebration of a marriage, domestic partnership, or similar civil union,

B. The presentation of a show to which the public has free access when the show is in a public park, on a public street, or on property under the jurisdiction of the Port Commission.

C. Any permit or agreement to engage in film production pursuant to Chapter 57 of this Code or under the circumstances set forth in Section 57.7 of this Code,

D. Any show on property under the jurisdiction of the Arts Commission, or

E. In any circumstance where application of this Section would be preempted by federal or state law,

F. Any show for which the time required for the set-up is three hours or less and the number of individuals working on the set-up is no more than two.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract, Lease, Franchise, Permit, or Agreement with the City and County of San Francisco for the use of property owned by the City and County of San Francisco as set forth in this Section.

(4) "Employee" shall mean any individual engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services on property owned by the City and County of San Francisco for a Contractor or a subcontractor. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (b) does not possess or has not maintained a required occupational license; or (c) employed less than 15 hours per week.

(5) "Person" shall mean any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts, or any combination thereof.

(6) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, if a majority of such workers are paid at a single rate; if there is no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid to the greatest number of workers.

(7) "Show" shall mean any live act, play, review, pantomime, scene, music, song, dance act, song and dance act, or poetry recitation provided in front of a live audience or recorded for the purpose of later presentation, but shall not include an event where a person solely plays pre-recorded music or pre-recorded performances so long as no other live performance is provided.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime Contract, Lease, Franchise, Permit, or Agreement. "Subcontractor" shall mean any Person who enters into a Subcontract.

(b) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, within 60 days after the effective date of this Section, and on or before the first Monday in November of each subsequent year, data as to the Prevailing Rate of Wages for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, and the Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(c) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for use of property owned by the City and County of San Francisco, or a subcontractor, may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the Contract, Lease, Franchise, Permit, or Agreement, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor or Subcontractor fails to pay at least the Prevailing Rate of Wages to Employees as required by this Section, the Contractor shall have "cured the violation" once the Contractor or Subcontractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Contract, Lease, Franchise, Permit, or Agreement, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer or the Labor Standards Enforcement Officer may assess a penalty (a "willful violation penalty") of not more than 10 percent of the dollar amount of the Contract, Lease, Franchise, Permit, or Agreement, such sums to be deposited in the fund out of which the Contract, Lease, Franchise, Permit, or Agreement is awarded or, if none exists, the General Fund. The Contracting Officer or Labor Standards Enforcement Officer may impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(d) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract, Lease, Franchise, Permit, or Agreement conflicts with an existing collective bargaining agreement to which a Contractor or Subcontractor is a party, the collective bargaining agreement shall prevail. However, the Contractor or Subcontractor will be obligated to make good faith efforts to comply with the requirements of its Contract, Lease, Franchise, Permit, or Agreement that do not conflict with the collective bargaining agreement.

(e) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or State law.

(f) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing Contract, Lease, Franchise, Permit, or Agreement issued or entered into by the City and County of San Francisco.

(g) Applicability to Existing Contracts, Leases, Franchises, Permits, or Agreements. This Section shall only apply to Contracts, Leases, Franchises, Permits, or Agreements entered into on or after the effective date of this Section.

(h) Severability. If any severable provision or provisions of this Section or any application thereof is held invalid, such invalidity shall not affect any other provisions or applications of the Section.

(Added by Ord. 76-04, File No. 021505, App. 5/6/2004)

Sec. 21.25-x. Prevailing Rate Of Wages Required In Contracts For Moving Services; Nonprofit Organizations Exclusion.

Every Contract issued by the City and County of San Francisco for Moving Services to be performed at any facility owned or leased by the City and County of San Francisco, where such work is to be done directly under the contract awarded (a "prime contract") must require that any individual performing Moving Services thereunder be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract is being performed.

(a) Exclusions. This Section shall not apply to the following:

(1) Non-profits. This Section shall not apply to a Contract where the Moving Services are to be performed by a non-profit organization that provides job training and work experience for disadvantaged individuals in need of such training.

(2) Prior Agreements. This Section shall not apply to agreements entered into before the effective date of this Section.

(3) Contracts for $1000 or less. This Section shall not apply to contracts for $1000 or less per moving service provider. Contracts may not be split for purposes of evading the requirements of this Section.

(b) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contract" shall mean an agreement for Moving Services to be performed at the expense of the City and County of San Francisco or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City and County of San Francisco.

(2) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract on behalf of the City and County of San Francisco.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract with the City and County of San Francisco.

(4) "Employee" shall mean any individual performing moving services as defined herein. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act.

(5) "Moving Services" shall mean moving or handling of goods being relocated under a contract for commercial moving services to relocate City offices, facilities and institutions.

(6) "Non-profit" shall mean a non-profit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains a valid non-profit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section.

(6) "Person" shall include any individual, firm, proprietorship, partnership, corporation or combination thereof.

(7) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers performing moving services, if a majority of such workers be paid at a single rate; if there be no single rate being paid to a majority then the prevailing rate shall be that single rate being paid the greatest number of workers.

(c) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for Moving Services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, on or before the first Monday in November of each year, data as to the Prevailing Rate of Wages for Moving Services as paid in private employment in the City and County of San Francisco, including wages for overtime and holiday work. The Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for Moving Services, including such rate of wages for overtime and holiday work, as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.
In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(d) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer of the City's Labor Standards Enforcement Officer determines that a Contractor for Moving Services may have violated the prevailing wage requirements of this Section, the Contracting Officer or the City's Labor Standards Enforcement Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the contract, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to individuals performing Moving Services under a Contract for Moving Services, the Contractor shall have "cured the violation" once the Contractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Contract for Moving Services, where the Contracting Officer or the Office of Labor Standards Enforcement finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer or the City's Labor Standards Enforcement Officer shall assess a penalty (a "willful violation penalty") in the sum of $50 per day for each Employee for each day the Contractor or Subcontractor fails to pay the Prevailing Rate of Wages, such sums to be deposited in the fund out of which Contract is awarded. The Contracting Officer or the City's Labor Standards Enforcement Officer shall impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(e) Verification. The Contractor must provide verification of compliance with the provisions of this Ordinance upon request by the Contracting officer or the City's Labor Standards Enforcement Officer.

(f) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Contract that do not conflict with the collective bargaining agreement.

(g) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(h) Effective Date and Application. This Section shall become effective 30 days after it is enacted. This Section is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing agreement to which the City is a party, unless such pre-existing agreement has been amended after the effective date of this Section.

(i) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 169-04, File No. 040540, App. 7/22/2004)

ADMINISTRATIVE CODE
CHAPTER 88: PERFORMANCE AND REVIEW
ORDINANCE OF 1999