On January 20, 2023, San Francisco’s mayor London Breed approved a city ordinance that will require private employers with 100 or more employees to supplement the pay of covered employees during a qualifying military leave for up to 30 days in a calendar year. The Military Leave Pay Protection Act (“MLPPA”) adds article 33Q to the city Police Code and will make San Francisco the first major city in the United States to require private employers to provide differential paid leave to employees who are members of the military while they perform military service. The ordinance will go into effect on February 19, 2023.
Who is Covered by the Ordinance?
The ordinance will apply to employers of 100 or more employees, regardless of location. To be eligible for the supplemental compensation, the employee must work in San Francisco, be a member of the reserve corps of the United States Armed Forces, National Guard, or other uniformed service organization in the United States, and be absent from work for “military duty”, which is defined as:
[A]ctive military service in response to the September 11, 2001 terrorist attacks, international terrorism, the conflict in Iraq, or related extraordinary circumstances, or military service to provide medical or logistical support to federal, state, or local government responses to the COVID-19 pandemic, natural disasters, or engagement in military duty ordered for the purposes of military training, drills, encampment, naval cruises, special exercises, Emergency State Active Duty, or like activity.
The ordinance applies to part-time and temporary employees, but not to employees covered by a bona fide collective bargaining agreement that expressly, clearly, and unambiguously waives the ordinance’s requirements.
How Do I Provide Supplemental Compensation?
Covered employers must pay military member employees the difference between their military pay and the amount of pay they would have received from their employers had they worked the “regular work schedule (excluding overtime unless regularly scheduled as part of the [e]mployee’s regular work schedule.” Employees can be paid leave in “daily increments for one or more days at a time, for up to 30 days in any calendar year.”
How Will the Ordinance Be Enforced?
An employee who believes their employer did not comply with the ordinance may file an administrative complaint with the San Francisco Office of Labor Standards and Enforcement (“OLSE”). Additionally, “[t]he City, or any person or entity acting on behalf of the public as provided for under applicable State law” are empowered to bring a civil action against an employer who violates the ordinance by providing written notice to the OLSE and City Attorney of their intent to sue and a statement explaining their contention that a violation occurred.
If the party who brings the civil action prevails, they will be able to recover “such legal or equitable relief as may be appropriate to remedy the violation”, including, but not limited to, any unlawfully withheld payment of the differential pay. Liquidated damages may also be recovered in the amount of $50 for each aggrieved employee or each day the employee’s rights were violated. Employers may also be ordered to pay the amount of compensation unlawfully withheld “multiplied by three” or $250, whichever is greater.
The OLSE is yet to issue specific guidelines on compliance. MNK Law will continue to monitor developments by the OLSE with respect to the new ordinance. Since the ordinance is going into effect next month, employers should begin planning for effectively managing military duty absences and supplemental compensation obligations. For more information on the new ordinance, please contact us at info@mnklawyers.com.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
