San Francisco, CA: New Ordinance Regarding Breastfeeding; Salary History Inquiries Prohibited

San Francisco employers should be aware of two new ordinances that impact workplace practices.

The Lactation in the Workplace Ordinance and the Parity in Pay Ordinance impose new obligations on employers and their managing staff. Key provisions of each ordinance are described below.

Accomodations for Lactating Employees

The Lactation in the Workplace Ordinance enhances existing statewide protections for nursing mothers. The ordinance goes into effect January 1, 2018, and applies to all lactating employees working within the geographical boundaries of San Francisco.

Current regulations require employers to provide lactating employees reasonable break time and a private location other than a bathroom to express milk. The ordinance now specifies that the private location must be safe and clean, have a surface to place a breast pump and other personal items, provide a place to sit, and have access to electricity.

In addition to these requirements for the private location, employers must also provide lactating employees access to a refrigerator and a sink with running water in close proximity to the employee’s work area. Employers do not need to provide accommodations that result in undue hardship (e.g., building a new room or undertaking construction).

The ordinance also includes new notice and recordkeeping requirements. Specifically, employers must develop and distribute a written lactation accommodation policy that includes information on how employees may request an accommodation. Records relating to lactation accommodations must be kept for three years.

Prohibition Against Salary History Inquiries

The Parity in Pay Ordinance is expected to go into effect on July 1, 2018. As with other similar ordinances, the objective of this new bill is to reduce the pay disparity between workers of different genders originating from historical pay differentials. The ordinance applies to all employees working in the geographic boundaries of San Francisco, including temporary, seasonal, part-time, or contracted workers.

Employers will be prohibited from:

• Directly or indirectly inquiring into an applicant’s salary history
• Considering an applicant’s salary history when making employment decisions, such as determining whether to hire the applicant or when setting the applicant’s compensation rate
  1. However, employers will be permitted to consider prior salary history when setting compensation rates only if the applicant voluntarily (and without prompting) discloses their salary history. Note that employers must still be conscious of the California Fair Pay Act when determining an applicant’s compensation rate.
• Providing a current or former employee’s salary history to a prospective employer without written authorization of the employee to do so, except where such disclosure is required by law or is publicly available or subject to a collective bargaining agreement
• Retaliating against, or refusing to hire, an applicant for not disclosing salary history