(a) Administrative Enforcement.
(1) With regard to the employment provisions of this
Article 49, the OLSE is authorized to take appropriate steps to enforce this Article and coordinate enforcement, including the investigation of any possible violations of this Article. Where the OLSE 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. The OLSE shall not find a violation based on an Employer’s decision that an applicant or employee’s Conviction History is Directly Related, but otherwise may find a violation of this Article, including if the Employer failed to conduct the individualized assessment as required under Section
4904(f).
(2) Where the OLSE determines that a violation has occurred, it may issue a determination and order any appropriate relief, provided however, that for a first violation, or for any violation during the first twelve months following the operative date of this Article, the OLSE must issue warnings and notices to correct, and offer the Employer technical assistance on how to comply with the requirements of this Article. For a second violation, the OLSE may impose an administrative penalty of no more than $50.00 that the Employer must pay to the City for each employee or applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations, the penalty may increase to no more than $100, payable to the City for each employee or applicant whose rights were, or continue to be, violated. Such funds shall be allocated to the OLSE and used to offset the costs of implementing and enforcing this Article.
(3) If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g. all applicants for a certain job opening are asked for their Conviction History on the initial application), the violation shall be treated as a single violation rather than multiple violations.
(4) Where prompt compliance is not forthcoming, the OLSE may refer the action to the City Attorney to consider initiating a civil action pursuant to Subsection (b).
(5) Subsections (a)(2), (a)(3), and (a)(4) apply to violations occurring prior to the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section 4909. Subsections (a)(6) and (a)(7) apply to violations occurring on or after the effective date of that ordinance.
(6) Where the OLSE determines that a violation has occurred, it may issue a determination and order any appropriate relief. If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain job opening are asked for their Conviction History on the initial application), the violation shall be treated as one violation for each impacted employee or applicant.
(7) For a first violation on or after the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section
4909, the OLSE may impose an administrative penalty of no more than $500 for each employee or applicant as to whom the violation occurred or continued. For a second violation on or after the effective date of that ordinance, the OLSE may impose an administrative penalty of no more than $1,000 for each employee or applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations on or after the effective date of that ordinance, the OLSE may impose an administrative penalty of no more than $2,000 for each employee or applicant whose rights were, or continue to be, violated. The administrative penalties for each violation on or after the effective date of that ordinance shall be paid to the employee or applicant as to whom the violation occurred or continued. Notwithstanding the previous sentences in this subsection (a)(7), if multiple employees or applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain job opening are asked for their Conviction History on the initial application), the Employer shall be assessed the same administrative penalty for each of the employees or applicants affected by that procedural violation.
(8) An employee, applicant or other person may report to the OLSE any suspected violation of this Article 49 within 60 days of the date the suspected violation occurred. The OLSE 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, applicant or person reporting the violation; provided, however, that with the authorization of such person, the OLSE may disclose his or her name and identifying information as necessary to enforce this Article or for other appropriate purposes.
(9) The Director of the OLSE shall establish rules governing the administrative process for determining and appealing violations of this
Article 49. The Rules shall include procedures for:
(A) providing the Employer with notice that it may have violated this Article;
(B) providing the Employer with a right to respond to the notice;
(C) providing the Employer with notice of the OLSE’s determination of a violation;
(D) providing the Employer with an opportunity to appeal the OLSE’s determination to a hearing officer, who is appointed by the City Controller or his or her designee.
(10) If there is no appeal of the OLSE’s determination of a violation, that determination shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought by the Employer against the City regarding the OLSE’s determination of a violation.
(11) If there is an appeal of the OLSE’s determination of a violation, the hearing before the hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any such hearing, the OLSE’s determination of a violation shall be considered prima facie evidence of a violation, and the Employer shall have the burden of proving, by a preponderance of the evidence, that the OLSE’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final decision. The sole means of review of the City’s final decision, rendered by the hearing officer, shall be by filing in the San Francisco Superior Court a petition for writ of mandate under Section 1094.5 of the California Code of Civil Procedure. The OLSE shall notify the Employer of this right of review after issuance of the City’s final decision by the hearing officer.
(b) Civil Enforcement. The City or any employee or applicant whose rights under this Article 49 have been violated may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Article, 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 benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $500 to each employee, applicant or other person whose rights under this Article were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and, further shall be awarded reasonable attorney’s fees and costs. An employee or applicant may institute a civil action under this subsection (b) only if: (1) The employee or applicant has filed a complaint with the Director of the OLSE;
(2) 90 days have passed since the filing of the complaint;
(3) After such 90-day period has passed, the employee or applicant provides 30-day written notice to the Director of the OLSE and the City Attorney’s Office of his or her intent to initiate civil proceedings; and
(4) The City Attorney’s Office has not provided notice to the employee or applicant of the City’s intent to initiate civil proceedings by the end of the 30-day period.
(c) Interest. In any administrative or civil action brought under this Article, the OLSE 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.
(d) Remedies Cumulative. The remedies, penalties, and procedures provided under this Article are cumulative.
(e) Limitation on Actions. Civil Actions to enforce the employment provisions of this Article must be filed within one year after the date of the violation. This limitations period shall not commence until the date the violation was discovered or could reasonably have been discovered.
(f) Tracking of Complaints. OLSE shall maintain a record of the number and types of complaints it receives alleging violations of this Article, and the resolution of those complaints. OLSE shall report this information to the Board of Supervisors within six months of the operative date of the ordinance in Board of Supervisors File No. 171106 and then annually thereafter.
(Added by Ord. , File No. 131192, App. 2/14/2014, Eff. 3/16/2014, Oper. 8/13/2014; amended by Ord. , File No. 171170, App. 4/13/2018, Eff. 5/14/2018, Oper. 10/1/2018)
