S.F. Allows for Flexibility in the Workplace

San Francisco is the first American city to pass a law in giving workers the right to request flexible work arrangements. (Courtesy photo)

This week’s question comes from Candice in San Leandro, who asks:

Q: I am a new mom and plan to return to work at a marketing firm in San Francisco next month. Fortunately, my mother-in-law will be able to take care of my baby most of the time, but she has to leave at 4:30 p.m. to go to work, so I will need to have a flexible schedule in order to be home by then. Do I have any right to request this kind of accommodation? Is there anything I should know about how to make the request? Thanks for your help.

A: Hi Candace, Congratulations on your new baby. There are many complicated decisions you have to make during this time of transition and I hope I am able to provide you some ease on this one.

We are fortunate in that San Francisco, which has always been on the cutting edge of employment mandates, is the first American city to pass a “right to request” law in giving workers the right to request flexible work arrangements. The San Francisco Family Friendly Workplace Ordinance (FFWO) took effect on Jan. 1, 2014 and applies to all San Francisco employers that regularly employ 20 or more people, whether or not all employees are located in San Francisco.

The ordinance provides rights and protections for qualifying employees who need flexible or predictable work arrangements in order to care for specific family members (spouse, domestic partner, child, parent, sibling, grandchild or grandparent) who are either (a) under age 18; (b) over age 65; or (c) living with a serious health condition (illness, injury, impairment, or physical or mental condition that requires either inpatient care or continuing healthcare treatment or supervision). 

To qualify, the employee must:

-Be employed within the City of San Francisco;
-Regularly work at least 8 hours per week; and
-Have worked for their employer for at least 6 months.

Assuming that you qualify under this local provision, you have the right to request a flexible or predictable work arrangement to care for your child. If you don’t qualify under the FFWO, you could still qualify for intermittent time off and/or flexible schedule under certain state laws, such as the California Family Rights Act and New Parent Leave Act.

Under the FFWO, a request must be in writing and specify the arrangement applied for, the date on which the arrangement becomes effective, the duration of the arrangement, and how the request is related to caregiving. The flexible arrangement may include modified work schedules, change in start and end times, working from home and telecommuting. An employee may make up to two requests in a 12-month period, unless the employee experiences a major life event, in which case they may make an additional request during that timeframe. You can find a sample FFWO Request form on The City and County of San Francisco Office of Labor Standards Enforcement (OLSE)’s website https://sfgov.org/olse/family-friendly-workplace-ordinance-ffwo.

An employer must arrange to meet with the employee to discuss any FFWO request within 21 days after its receipt and must then provide a formal response within 21 days after the meeting. The employer’s decision must be made in writing and, if the request is denied, the employer must both provide the employee with a “bona fide business reason” for the denial and notify the employee of the right to request reconsideration. Should the employee request reconsideration, the employer must have a second meeting with the employee and issue a final decision 21 days after that meeting. Employers are further prohibited from retaliating against employees in any way for undertaking the FFWO request process.

“Bona fide business reasons” for a flexible work arrangement may include: identifiable costs, such as productivity loss, retraining or rehiring costs, or the costs of transferring employees; detrimental impact on the employer’s ability to meet customer or client demand; inability to organize work among other employees; or insufficient work time during the employee’s proposed schedule.

So, unless your employer has a bona fide business reason for denying your request, there should be no problem arranging for the modified hours you need to care for your child. If you do run into a problem, including if your employer fails to discuss the request with you or provide a response to the request within 21 days, or if you are retaliated against for making the request, you should contact a trial attorney to take appropriate legal action on your behalf.

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Following chain of liability in e-scooter injuries

This week’s question comes from John T. in Portola Valley, who asks:

Q: “I was using an electric scooter when the brakes failed and I ran into a car, breaking my wrist. I didn’t do anything wrong, but now I have a lot of medical bills and I will miss at least three weeks of work (I work with my hands). I reached out to the company and they said they would “look into it,” but I have not heard anything back from them. I don’t have a lot of money so this is going to wipe out the meager savings I have. What are my rights?”

A: John, I am sorry to hear of your crash. Unfortunately, you are part of a growing number of people being hurt by these new scooters, whether while driving over storm grates and uneven roads, colliding with cars that pull out in front of them or make unsafe lane changes, or by being rear-ended. E-scooters are causing a flood of injuries to the emergency rooms throughout the state.

Your case, in which the scooter’s brakes failed, presents an issue of product liability law. Like other jurisdictions, California law provides a means of seeking accountability for injuries caused by defective products by bringing suit against product designers, manufacturers, distributors, retailers and, in this case, providers of products for general use and consumption.

A claim for product liability may arise where there is a flaw in a product’s design, a manufacturing defect, a failure to properly inspect or maintain a product, or a failure to warn of dangerous and foreseeable risks, even when caused by foreseeable misuse. In order to succeed in such a claim, the product must be in the same or similar condition as when it left the manufacturer, distributor, or retailer. If the product has been modified in a manner that may have contributed to the injury, any party “upstream” from the point when it was modified may be insulated from liability.

Since products are often designed, manufactured, distributed, and retailed by different entities, and there is a risk that any one or more of them may not be properly insured or financially stable enough to pay for a valid claim, California follows the “chain of distribution” method of financial accountability. Depending on the type of defect (design vs. manufacturing/inspection), anyone “downstream” in the chain of distribution, from the designer to the retailer, or in this case rental company, may be held financially responsible for your injuries.

California law follows what is known as the “consumer expectations test” in determining whether a product is defective. If a product fails to operate safely when used in such a manner as a consumer could reasonably expect that it should, then the design may, depending on the facts, prove to be defective. If the product leaves a factory with a safety defect deviating from the intended design and manufacturing process (in your case, if the brake cable was fastened incorrectly), then the producer may be held liable for a manufacturing defect claim. The manufacturer may also be held liable for a failure to conduct a reasonable inspection to assure that the scooter was safe and fit for its intended use.

If, on the other hand, the product, as designed and manufactured, was safe at its point of initial sale, but Bird, Skip, Scoot, Lime or another rental company failed to properly inspect and maintain the product while it was in the field, then that company may be held responsible under a negligent maintenance theory of liability. These scooters are in heavy use/rotation and are often abused. The company’s inspection and maintenance program should be carefully examined to ascertain whether their methods and practices are adequate to identify and remedy dangerous defects.

One hurdle that you may face in making a successful claim, depending on the scooter company you rent through, is that you may have signed a waiver and/or assumption of risk clause when you clicked “accept” and accepted the terms and conditions of use. Some companies have put in a complete waiver in their terms and conditions which they will claim bars any legal action against them. Others have placed a $100 limit on their accountability. Some even go so far as to include a waiver of any claims against the manufacturers. These broad waivers have yet to be challenged at the appellate courts, so it is unclear if they will be upheld. Because of the unfairness associated with these waivers, I have proposed legislation, together with the premier consumer protection association in California, The Consumer Attorneys of California, to eliminate these anti-consumer waivers.

John, I suggest that you speak with a good, well respected, trial lawyer about this case and your facts. These companies generally don’t negotiate.

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Bumpy Road for Pothole Liability

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

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Protecting the Elderly from Abuse and Neglect

This week’s question comes from Tara W. from Tiburon, who asks:

Q: “My grandmother is in a nursing home. She is bedbound and can’t use her legs. From my visits and conversations with her, it is clear that the nursing home personnel doesn’t get her out of bed or change her adult diaper nearly regularly enough and, as a result, she has developed two large sores on her bottom. We know it is not the best place for her, but it is all our family can afford. What rights does she have and what can I do to hold them responsible for not caring for my Grandma?

A: Dear Tara, As our society ages as a group, more and more facilities are springing up in the elder care business. Unfortunately, while many are caring and reputable, many others are poor quality and understaffed, with some resembling nothing more than warehouses for the elderly. In the context the Bay Area’s skyrocketing costs of living, many families like yours have no choice but to settle for substandard services.

California’s Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified in the California Welfare and Institutions Code, reflects the state legislature’s recognition that persons age 65 and older are a disadvantaged class worthy of heightened protection from the state because their age-related physical and mental limitations diminish their ability protect their rights on their own. Cal. Welf. & Inst. Code § 15600. EADACPA protections also apply to other disabled adults between 18 and 64 whose physical or developmental disabilities restrict their ability to carry out normal activities and are therefore either dependent on others for their basic and daily needs or admitted as inpatients to 24-hour health facilities. Cal. Welf. & Inst. Code § 15610.23(a)-(b). The law seeks to protect elders and dependents from abuse and neglect by providing an array of public and private legal remedies, including recovery for a victim’s pain and suffering, attorney’s fees, litigation costs, and punitive damages. Cal. Welf. & Inst. Code § 15657. By imposing the specter of these enhanced remedies in litigation, the law seeks to simultaneously disincentivize unlawful behavior and encourage private enforcement of the laws.

EADACPA defines neglect of an elder/dependent as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise,” which may take the form of failure to assist in personal hygiene, provide food, clothing, shelter, or medical care, or protect from health and safety hazards. Cal. Welf. & Inst. Code § 15610.57. Abuse is defined as deprivation by a care custodian of goods and services necessary to avoid physical harm or mental suffering, or as well as financial abuse, physical abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Cal. Welf. & Inst. Code § 15610.07.

To recover EADCPA’s enhanced remedies, including punitive damages, a plaintiff must prove by clear and convincing evidence not only that the defendant is liable for physical abuse, neglect, or financial abuse as defined by the act, but also that they are guilty of recklessness, oppression, fraud, or malice in the commission of that abuse. Beyond a purely negligent absence of care, recklessness involves a deliberate disregard of the high degree of probability that an injury will occur, rising to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. Oppression, fraud, and malice further require intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Welf. & Inst. Code § 15657.

Tara, from what you report, your grandmother’s situation sounds like it could qualify as neglect under EADCPA. Your family’s first step should be to file an administrative complaint. The allows any person or organization, not only victims and family members, to file a complaint about a nursing home with the Licensing and Certification Division of the California Department of Public Health (DPH). The DPH’s San Francisco office is located at 150 North Hill Drive Suite 22, Brisbane, CA 94005. Their phone number is (415) 330-6353.

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