San Diego Municipal Code Div. 1 City of San Diego Earned Sick Leave and Minimum Wage Ordinance

(“City of San Diego Earned Sick Leave and Minimum Wage” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

This Division ensures that employees who work in the City receive a livable minimum wage and the right to take earned, paid sick leave to ensure a decent and healthy life for themselves and their families. By enabling more employees to support and care for their families through their own efforts and with less need for financial assistance from the government, and by protecting the rights of employees to care for their health and the health of their family members, the City can safeguard the general welfare, health, safety and prosperity of all San Diegans.

It is the purpose and intent in enacting this Division that San Diego workers be

guaranteed the right to take earned sick leave. Most employees will at some time during each year need limited time off from work to take care of their own health needs or the health needs of members of their families. Guaranteeing employees earned sick leave will reduce recovery time from illnesses, promote the use of regular medical providers rather than hospital emergency departments, and reduce the likelihood of workers spreading illness to other members of the workforce and to the public.

It is also the purpose in enacting this Division to ensure that employees working in

the City earn wages that ensure a decent and healthy life for themselves and their families. When employers do not pay a livable wage, the surrounding community and taxpayers bear costs in the form of increased demand for taxpayer-funded services, including homeless shelters. Jobs paying a decent wage will ensure a more stable workforce for the City, increase consumer income, decrease poverty, and invigorate neighborhood business. (“Purpose and Intent” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

This Division shall be cited as the City of San Diego Earned Sick Leave and Minimum Wage Ordinance. (“Citation” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

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This Division is adopted pursuant to the powers vested in the City under the Constitution and the laws of the State of California, including, but not limited to, the police powers vested in the City pursuant to Article XI, section 7 of the California Constitution and California Labor Code section 1205(b). (“Authority” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

Each word or phrase defined in this Division appears in the text of this Division in italicized letters. To the extent that a federal, state, or other law is referenced within this Division, the citation includes and incorporates the law as it may be amended or renumbered in the future. For purposes of this Division, the following definitions apply:

Benefit Year means a regular and consecutive twelve-month period, as determined by an Employer.

Child means a biological, adopted, or foster child; a stepchild; a legal ward; a child of a Domestic Partner; or a child of an Employee standing in loco parentis.

City means the City of San Diego.

City Council means the Council of the City of San Diego.

Domestic Partners mean two adults in a relationship recognized by the State of California by filing as domestic partners under California Family Code section 297, and who have registered as domestic partners with a governmental entity pursuant to state or local law authorizing such registration or with an internal registry maintained by the employer of at least one of the domestic partners.

Domestic Violence means “domestic violence” as defined in California Penal Code section 13700.

Earned Sick Leave means accrued increments of compensated leave provided by an Employer to an Employee as a benefit of the employment for use by the Employee during an absence from the employment because of a qualifying medical condition or event, as specified in section 39.0106 of this Division.

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Employee means any person who:

(a) In one or more calendar weeks of the year performs at least two hours of work
within the geographic boundaries of the City for an Employer; and

(b) Qualifies as an employee entitled to payment of a minimum wage from any
employer under the California minimum wage law, as set forth in the
California Labor Code and wage orders published by the California Industrial
Welfare Commission or the State of California Division of Labor Standards
Enforcement, or is a participant in a State of California Welfare-to-Work
Program.

(c) Employee does not include any person who is authorized to be employed at
less than the minimum wage under a special license issued under California
Labor Code sections 1191 or 1191.5; any person employed under a publicly
subsidized summer or short-term youth employment program, such as the San
Diego County Urban Corps Program; or any student employee, camp
counselor, or program counselor of an organized camp as defined in
California Labor Code section 1182.4. Employee also does not include any
person who is employed as an independent contractor as defined by the
California Labor Code.

Employer means any person or persons, as defined in California Labor Code section
18, who exercises control over the wages, hours, or working conditions of any
Employee, or suffers or permits the Employee to work, or engages the Employee.
Employer does not include a person receiving services under the California In-Home
Supportive Services program pursuant to Welfare and Institutions Code section
12300.

Enforcement Office means the Office of the City Treasurer, or other Office or
Department under the authority of the Mayor and designated by the Mayor to enforce
this Division.

Enforcement Official means any person authorized to enforce violations of this
Division.

Family Member means a Child, Spouse, Parent, grandparent, grandchild, Sibling, or
the Child or Parent of a Spouse.

Health Care Provider means any person licensed under federal or California law to
provide medical or emergency services, including, but not limited to, doctors, nurses
and emergency room personnel.

Minimum Wage means an hourly minimum rate to be paid to Employees, as defined
in section 39.0107 of this Division.

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Parent means a biological, foster, or adoptive parent; a step-parent; a legal guardian; or a person who stood in loco parentis when the Employee was a minor child.

Public Health Emergency means a state of emergency declared by any public official with the authority to do so, including officials with the City, the County of San Diego, the State of California, or the United States government.

Retaliation means any threat, discipline, discharge, demotion, suspension, reduction
in Employee hours, or any other adverse employment action against any Employee for
exercising or attempting to exercise any right guaranteed under this Division.

Safe Time means time away from work that is necessary due to Domestic Violence,
Sexual Assault, or Stalking, provided the time is used to allow the Employee to obtain
for the Employee or the Employee’s Family Member one or more of the following:

(a) Medical attention needed to recover from physical or psychological injury or
disability caused by Domestic Violence, Sexual Assault, or Stalking;

(b) Services from a victim services organization;

(c) Psychological or other counseling;

(d) Relocation due to the Domestic Violence, Sexual Assault, or Stalking; or

(e) Legal services, including preparing for or participating in any civil or criminal
legal proceeding related to or resulting from the Domestic Violence, Sexual
Assault, or Stalking.

Sexual Assault means “rape” as defined in California Penal Code section 261 or
“sexual battery” as defined by California Penal Code section 243.4.

Sibling means a brother or sister, whether related through half blood, whole blood, or
adoption, or one who is a step-sibling.

Spouse means a person to whom an Employee is legally married under the laws of the
State of California, or the Employee’s Domestic Partner.

Stalking means the unlawful conduct described in California Penal Code
section 646.9.
(“Definitions” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)
(Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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(a) Employers must provide Earned Sick Leave to their Employees in accordance with this Division.

(b) Employers must provide an Employee with one hour of Earned Sick Leave for
every 30 hours worked by the Employee within the geographic boundaries of
the City, but Employers are not required to provide an Employee with Earned
Sick Leave in less than one-hour increments for a fraction of an hour worked.
Employers may cap an Employee’s total accrual of Earned Sick Leave at
80 hours.

(c) An Employer may satisfy the accrual and carry-over provisions of this section
if no less than 40 hours of Earned Sick Leave are awarded to an Employee at
the beginning of each Benefit Year for use in accordance with this Division,
regardless of the Employee’s status as full-time, part-time, or temporary.

(d) Earned Sick Leave begins to accrue at the commencement of employment or
on July 11, 2016, whichever is later, and an Employee is entitled to begin
using accrued Earned Sick Leave on the 90th calendar day following
commencement of his or her employment or on July 11, 2016, whichever is
later. After the 90th calendar day of employment or after July 11, 2016,
whichever is later, an Employee may use Earned Sick Leave as it is accrued.

(e) Earned Sick Leave for Employees not exempt from the overtime requirements
of federal and California law must be compensated at the same regular rate of
pay for the work week in which the Employee uses the Earned Sick Leave.
Earned Sick Leave for Employees exempt from the overtime requirements of
federal and California law must be compensated at the same rate or in the
same manner as the Employer calculates compensation for paid working time.

(f) Employees who are not covered by the overtime requirements of federal and
California law or regulations are assumed to work 40 hours in each work
week for purposes of Earned Sick Leave accrual unless their regular work
week is less than 40 hours, in which case Earned Sick Leave accrues based
upon that regular work week.

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(g) An Employer who provides an Employee with an amount of paid leave, including paid time off, paid vacation, or paid personal days sufficient to meet the requirements of this section, and who allows this paid leave to be used for the same purposes and under the same conditions as the Earned Sick Leave required by this Division, is not required to provide additional Earned Sick Leave to the Employee. An Employer who provides greater paid time off, either through a contract, collective bargaining agreement, employment benefit plan, or other agreement, than that required by this Division, is deemed to be in compliance even if the Employer utilizes an alternative methodology for calculation of, payment of, and use of Earned Sick Leave or other paid time off that can be used as Earned Sick Leave.

(h) Employees may determine how much Earned Sick Leave they need to use,
provided that Employers may set a reasonable minimum increment for the use
of Earned Sick Leave not to exceed two hours.

(i) Employers may limit an Employee’s use of Earned Sick Leave to 40 hours in a
Benefit Year, but unused, accrued Earned Sick Leave must be carried over to
the following Benefit Year.

(j) If an Employee is transferred to a separate division, entity, or location in the
City, but remains employed by the same Employer, the Employee is entitled to
all Earned Sick Leave accrued at the prior division, entity, or location, and is
entitled to retain and use all Earned Sick Leave, as provided by this Division.
When there is a separation from employment and the Employee is rehired
within six months of separation by the same Employer, previously accrued
Earned Sick Leave that was not used or paid out must be reinstated and such
Employee must be entitled to use such accrued Earned Sick Leave.

(k) Employers are not required by this Division to compensate an Employee for
unused, accrued Earned Sick Leave, upon the Employee’s termination,
resignation, retirement, or other separation from employment.
(“Accrual of Earned Sick Leave” added 2-8-2016 by O–20604 N.S.; effective
7-11-2016.)
(Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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(a) An Employee may use Earned Sick Leave for any of the following reasons:

(1) The Employee is physically or mentally unable to perform his or her
duties due to illness, injury, or a medical condition of the Employee.

(2) The Employee’s absence is for the purpose of obtaining professional
diagnosis or treatment for a medical condition of the Employee.

(3) The Employee’s absence is for other medical reasons of the Employee,
such as pregnancy or obtaining a physical examination.

(4) The Employee is providing care or assistance to a Family Member,
with an illness, injury, or medical condition, including assistance in
obtaining professional diagnosis or treatment of a medical condition.

(5) The Employee’s absence is for the Employee’s use of Safe Time.

(6) The Employee’s place of business is closed by order of a public
official due to a Public Health Emergency, or the Employee is
providing care or assistance to a Child, whose school or child care
provider is closed by order of a public official due to a Public Health
Emergency.

(b) An Employer may require reasonable notice of the need to use Earned Sick
Leave. Where the need is foreseeable, an Employer may require reasonable
advance notice of the intention to use such Earned Sick Leave, not to exceed
seven days notice prior to the date such Earned Sick Leave is to begin. Where
the need is not foreseeable, an Employer may require an Employee to provide
notice of the need for the use of Earned Sick Leave as soon as practicable.

(c) For an absence of more than three consecutive work days, an Employer may
require reasonable documentation that the use of Earned Sick Leave was
authorized under subsection (a) of this section. An Employer must accept as
reasonable, documentation signed by a licensed Health Care Provider
indicating the need for the amount of Earned Sick Leave taken, and an
Employer may not require that the documentation specify the nature of the
Employee’s or the Employee’s Family Member’s injury, illness, or medical
condition.

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(d) An Employer must not require an Employee, as a condition of using Earned
Sick Leave, to search for or find a replacement worker to cover the hours
during which such Employee is using Earned Sick Leave.
(“Use of Earned Sick Leave” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

(a) Employers must pay Employees no less than the Minimum Wage set forth in this section for each hour worked within the geographic boundaries of the City.

(b) The Minimum Wage is an hourly rate defined as follows:

(1) Starting July 11, 2016, the Minimum Wage is $10.50.

(2) Starting January 1, 2017, the Minimum Wage is $11.50.

(3) Starting January 1, 2019, and each year thereafter, the Minimum Wage
increases by an amount corresponding to the prior year’s increase, if
any, in the cost of living. The prior year’s increase in the cost of living
is measured by the percentage increase, if any, as of August of the
immediately preceding year over the level as of August of the previous
year of the Consumer Price Index (Urban Wage Earners and Clerical
Workers, U.S. City Average for All Items) or its successor index as
published by the U.S. Department of Labor or its successor agency,
with the amount of the minimum wage increase rounded to the nearest
multiple of five cents. The adjusted Minimum Wage will be announced
by the City by October 1 of each year, and will become effective as the
new Minimum Wage on January 1 of the succeeding year. The
adjusted Minimum Wage will be noticed and posted as set forth in this
Division.

(4) In the event that the federal or California minimum wage is increased
above the level of the Minimum Wage in force under this section, the
Minimum Wage under this section will be increased to match the
higher federal or California wage, effective on the same date as the
increase in the federal or California minimum wage takes effect.

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(c) An Employer that meets the requirements to claim a credit against the
California minimum wage under the California Labor Code or wage orders
published by the California Industrial Welfare Commission or the State of
California Division of Labor Standards Enforcement for meals or lodging
provided to Employees may claim a credit in the same amount against the
Minimum Wage required under this section.
(“Minimum Wage” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)
(Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

(a) The bulletin and notices specified in this section will be published by the City and made available to Employers in English, Spanish, and any other language for which the San Diego County Registrar of Voters provides translated ballot materials pursuant to section 203 of the federal Voting Rights Act. The materials specified in this section will be made available to Employers by September 1, 2016 with 2016 information; December 30, 2016 with 2017 information; and by October 1 of each year thereafter with information for the following year:

(1) A bulletin announcing the adjusted Minimum Wage for the upcoming
year and its effective date.

(2) A notice for Employers to post in the workplace informing Employees
of the current Minimum Wage and of their rights to the Minimum
Wage and Earned Sick Leave, including information about the accrual
and use of Earned Sick Leave, the right to be free from Retaliation,
and the right to file a complaint with the Enforcement Office or a court
of competent jurisdiction.

(3) A template notice suitable for use by Employers in compliance with
this section.

(b) Every Employer must post in a conspicuous place at any workplace or job site
where any Employee works the notice published each year by the City
informing Employees of the current Minimum Wage and of their rights to the
Minimum Wage and Earned Sick Leave under this Division. Every Employer
must post this notice in the workplace or on the job site in English and any
other language that is referenced in subsection (a) and spoken by at least five
percent of the Employees at the Employee’s job site.

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(c) Every Employer must also provide each Employee at the time of hire, or by October 1, 2016, whichever is later, written notice of the Employer’s legal name and any fictitious business names, address, and telephone number and the Employer’s requirements under this Division. The notice must also include information on how the Employer satisfies the requirements of this Division, including the Employer’s method of Earned Sick Leave accrual. The notice must be provided to Employees in English and in each Employee’s primary language, if it is a language referenced in subsection (a) and spoken by at least five percent of the Employees at the Employer’s workplace. Employers may provide this notice through an accessible electronic communication in lieu of a paper notice. (“Notice and Posting” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.) (Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

Employers must create contemporaneous written or electronic records documenting their Employees’ wages paid and accrual and use of Earned Sick Leave, provide these records to Employees on a regular basis, and retain these records for a period of at least three years. Employers must allow the Enforcement Official reasonable access to these records in furtherance of an investigation conducted pursuant to this Division. An Employer’s failure to create and retain contemporaneous written or electronic records documenting its Employees’ wages paid and accrual and use of Earned Sick Leave, or an Employer’s failure to allow the Enforcement Official reasonable access to records creates a rebuttable presumption that the Employer has violated this section and the Enforcement Official may rely on an Employee’s reasonable estimate regarding hours worked, wages that should have been earned, Earned Sick Leave that should have accrued, and Earned Sick Leave used. (“Employer Records” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.) (Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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Employers are prohibited from requiring an Employee to disclose details related to the medical condition of the Employee’s or the Employee’s Family Member as a condition for using Earned Sick Leave under this Division, except where disclosure is required or authorized by federal or state law. Employers who obtain medical or other personal information about an Employee or an Employee’s Family Member for the purposes of complying with Earned Sick Leave requirements of this Division must maintain the confidentiality of the information and must not disclose it, except with the permission of the Employee or as required by law. (“Confidentiality and Nondisclosure” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.)

Employers are prohibited from engaging in Retaliation against an Employee for exercising any right provided by this Division. The protections of this Division apply to any Employee who reasonably and in good faith reports a violation of this Division to his or her Employer or a governmental agency tasked with overseeing the enforcement of any wage and hour law applicable to the Employer. Rights under this Division include, but are not limited to, the right to request payment of the Minimum Wage, request and use Earned Sick Leave, file a complaint for alleged violations of this Division with the Enforcement Office or in court, communicate with any person about any violation or alleged violation of this Division, participate in any administrative or judicial action regarding an alleged violation of this Division, or inform any person of his or her potential rights under this Division. Protections of this Division apply to any Employee who mistakenly, but in good faith, alleges noncompliance with this Division. An Employer’s adverse action against an Employee within 90 calendar days of the Employee’s exercise of rights provided by this Division creates a rebuttable presumption that the Employer acted in retaliation against the Employee for the Employee’s exercise of protected rights. (“Retaliation Prohibited” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.) (Amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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(a) Any person claiming harm from a violation of this Division, including the City and an Employee, may bring a cause of action against an Employer in a court of competent jurisdiction to enforce the provisions of this Division, without exhausting the administrative remedies set forth in this Division. Submitting a complaint to the Enforcement Office is neither a prerequisite to nor a bar to bringing a civil action in a court of competent jurisdiction.

(b) Any person claiming harm from a violation of this Division, including an
Employee and the City, is entitled to all legal and equitable relief to remedy
any violation of this Division, including, but not limited to, the payment to an
Employee of back wages withheld in violation of this Division; damages for
an Employer’s denial of the use of accrued Earned Sick Leave in violation of
this Division, payable to an Employee; reinstatement of employment or other
injunctive relief; reasonable attorneys’ fees and costs to any plaintiff who
prevails in an action to enforce this Division; and payment of liquidated
damages to an Employee equal to double back wages withheld, except as
otherwise provided in this subsection. When an Employer engages in
Retaliation against an Employee, the Employer is subject to liquidated
damages that are the greater of double back wages or $1,000 for each
violation not resulting in termination of employment, and the greater of
double back wages or $3,000 when an Employee is terminated from
employment for exercising any right provided by this Division. Violations of
this Division are declared to irreparably harm the public and covered
Employees generally.

(c) Any Employer who violates any requirement of this Division is also subject to
a civil penalty, assessed and payable to the City, of no less than $500, but no
more than $1,000 per violation, except as otherwise provided in this
subsection. Each and every day that an Employer fails to pay an Employee
Minimum Wage or fails to provide an Employee with Earned Sick Leave
constitutes a separate and distinct violation. Any Employer who fails to
comply with the notice and posting requirements of this Division is subject to
a civil penalty of $500 for each Employee who was not given appropriate
notice pursuant to that section, up to a maximum of $2,000. Any Employer
who engages in Retaliation against an Employee for exercising any right
provided by this Division is subject to a civil penalty of no less than $1,000,
but no more than $3,000 per violation. The cumulative civil penalties that may
be assessed against an Employer, who has not previously violated any
provision of this Division and who violates the Minimum Wage provisions,
are limited to $10,000. The cumulative civil penalties that may be assessed
against an Employer, who has not previously violated any provision of this

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Division and who violates the Earned Sick Leave provisions, are limited to
$10,000. An Employer is deemed to have violated a provision of this Division
upon issuance of (1) a Notice of Satisfaction, (2) Administrative Enforcement
Order, or (3) final judgment of a court of competent jurisdiction, with a
finding of a violation. The minimum and maximum civil penalties under this
subsection must be increased cumulatively by fifty percent for each
subsequent violation of the same provision in this Division by the same
Employer or other person within a three-year period. If civil penalties and
costs are the subject of administrative appeal or judicial review, then the
accrual of penalties and other costs is stayed until the determination of the
appeal or review is final.

(d) Notwithstanding section 12.0201 of this Code, violations of this Division may
not be prosecuted as a misdemeanor or infraction.

(e) This Division does not create any right of action or cause of action for
damages against the City in its enforcement of this Division.

(f) This section is not intended to supersede any applicable, current or future state
or local law, rule, regulation, or approved memoranda of understanding
binding on the City, as a public agency employer, and its Employees.

(g) If an Employer ceases its business operations, sells out, exchanges, or
otherwise disposes of the Employer’s business, then any person who becomes
a successor to the business will be liable for the unpaid amount of the
remedies as defined in the Notice and Order if, at the time of the conveyance
of the business, the successor has actual or constructive knowledge of the fact
and amount of the Notice and Order.
(“Implementation, Enforcement, and Remedies” added 2-8-2016 by O-20604 N.S.;
effective 7-11-2016.)
(Retitled from “Implementation, Enforcement, and Remedies” to “Remedies” and
amended 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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(a) The Enforcement Office has full authority to implement and enforce this Division, consistent with the authority and powers set forth at Division 1 of Article 2, Chapter 1 of this Code. The Enforcement Official may investigate any possible violations of this Division by an Employer or other person. The Enforcement Official has authority to access any Employer’s or Employee’s workplace during workplace hours to examine and audit business and other relevant records; to interview witnesses, including Employees, at or away from Employees’ workplace; and to investigate all matters necessary or appropriate to determine whether an Employer has violated any provisions of this Division. The Enforcement Official may issue subpoenas, in accordance with applicable federal and state law and this Code. The Enforcement Official, under the direction of the Mayor, may promulgate and issue administrative regulations to establish and adjudicate complaints and to order relief in cases of violations, consistent with this Division.

(b) The Enforcement Office will provide information about the complaint process
that is readily accessible to the public, including non-English speakers. The
information must be made available in English, Spanish, and any other
language for which the San Diego County Registrar of Voters provides
translated ballot materials pursuant to section 203 of the federal Voting Rights
Act.

(c) (1) Any person may file a complaint, in writing, with the Enforcement
Office alleging a violation of this Division. The written complaint
must include a statement of dates, places, and persons or entities
responsible for the alleged violation. Notwithstanding anything to the
contrary in this Code, complaints alleging a violation of this Division
must be filed within two years of the occurrence of the alleged
violation.

(2) To encourage reporting and cooperation with investigations, the
Enforcement Office must maintain the confidentiality of any person
reporting an alleged violation and persons assisting in any
investigation, including the name, address, and other identifying
information of the person, to the extent permitted by law. The
Enforcement Office must also protect proprietary business information
to the extent permitted by law. The Enforcement Office may disclose
information as necessary to enforce this Division or for other lawful
purposes.

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(d) (1) Upon receipt of a written complaint, the Enforcement Official may
issue a Notice of Violation to the Employer, informing the Employer
of the alleged violation, including reference to the Code provision
alleged to have been violated, and specifying the action required to
correct or remedy the alleged violation. The Notice of Violation may
request access to the Employer’s workplace to investigate the alleged
violation, including inspecting records and interviewing witnesses.
The Notice of Violation may be served personally or by registered
mail, in accordance with Division 3 of Article 1 of Chapter 1 of this
Code.

(2) At the discretion of the Enforcement Official, an Employer served with
a Notice of Violation must be allowed 14 calendar days from the date
of the Notice of Violation to submit a written declaration to the
Enforcement Office, setting forth facts and evidence to demonstrate
that no violation occurred, that the Employer is not responsible for the
violation, or that the Employer has corrected or remedied the violation.
The Enforcement Official may request documents to support an
Employer’s written declaration. The Enforcement Official may assign
a longer period, not to exceed an additional seven calendar days,
within which an Employer may submit a written declaration. The
Enforcement Official may consider the cost of correction and the time
needed to obtain information and documents about the alleged
violation and any voluntary corrective action taken by the Employer in
assigning a specific period of time within which to correct or remedy
each violation, or obtain and submit evidence that no violation
occurred or an Employer is not responsible for the violation.

(e) The Enforcement Official may conduct an informal settlement conference
with the Employee and Employer, upon receipt of a complaint from an
Employee, and following issuance of the Notice of Violation, as an
opportunity to remedy the alleged violation, without further administrative
enforcement action. The Enforcement Official has discretion to impose civil
penalties in accordance with section 12.0805 of this Code, as a condition to
settle an alleged violation. A settlement is contingent upon approval by the
Employee, Employer, and the Enforcement Official.

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(f) If, following issuance of a Notice of Violation and the period of time assigned by the Enforcement Official to an Employer to respond by written declaration, the Enforcement Official determines that an Employer has violated any provision of this Division, the Enforcement Official may issue a Notice and Order to the Employer in violation. The Notice and Order may be served personally or by registered mail, in accordance with Division 3 of Article 1 of Chapter 1 of this Code. Each Notice and Order must be in writing and must describe the nature of the violation, including reference to the Code provision alleged to have been violated. The Notice and Order must include the assessment of unpaid wages and other damages, including liquidated damages, owed to the Employee, based on the facts presented to the Enforcement Official, and civil penalties payable to the City, in accordance with this Division and Division 8, Article 2 of Chapter 1 of this Code.

(g) If an Employer wants to contest a Notice and Order, the Employer must,
within 15 calendar days after service of the Notice and Order, serve written
notice to the Enforcement Office of his or her request for an administrative
enforcement hearing. This written notice must be postmarked on or actually
received by the Enforcement Office by the 15th calendar day following the
service of the Notice and Order.

(h) As soon as practicable, the Enforcement Office must schedule the
administrative enforcement hearing, which will be conducted by an
Enforcement Hearing Officer, who is independent from the Enforcement
Official. The administrative enforcement hearing must be conducted in
accordance with the due process requirements set forth in Division 4 of
Article 2 of Chapter 1 of this Code. The Enforcement Hearing Officer, at his
or her discretion and in accordance with applicable law, may permit any
person, who is not a party to an administrative enforcement hearing or a
party’s representative, to attend the administrative enforcement hearing upon
the person’s request. Any party to the administrative enforcement hearing
may, at his or her own expense, require that the hearing be transcribed by a
certified court reporter. At the conclusion of the administrative enforcement
hearing, the Enforcement Hearing Officer must affirm, modify, or dismiss the
Notice of Violation and any Notice and Order issued.

(i) The findings of the Enforcement Hearing Officer must be set forth in an
Administrative Enforcement Order, which must be served on all parties by
any one of the methods listed in section 11.0301 of this Code no later than 30
calendar days following the conclusion of the hearing or a later date by
stipulation of the parties. The Administrative Enforcement Order becomes
final on the date of service, and subject to judicial review, in accordance with
section 12.0412 of this Code. Employers found in violation must pay any civil
penalties assessed to the City, and damages, including liquidated damages, to
the Employee, with documentation of payment to the City.

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses, (9-2016)

(j) The Enforcement Office may collect all civil penalties and related
administrative costs in an Administrative Enforcement Order, by the use of all
appropriate legal means, including referral to the City Treasurer for
collections action and the recordation of a Code Enforcement Lien in
accordance with the procedures set forth in Division 2, Article 3 of Chapter 1
of this Code. If unable to collect the obligation, the Enforcement Official must
refer the obligation to the City Attorney, for a determination of further legal
action to recover the damages, civil penalties, and costs.

(k) A judgment entered in accordance with this Division must bear the same rate
of interest and have the same effect as other judgments and be given the same
preference allowed by the law on other judgments.

(l) In lieu of contesting a Notice and Order, an Employer must transmit to the
Enforcement Office the amount specified in the Notice and Order within
15 calendar days of service.

(m) An Employer’s failure to respond to a Notice and Order or appear at an
administrative enforcement hearing in accordance with the provisions of this
Division will constitute a failure to exhaust administrative remedies.

(n) The Enforcement Official must issue a Notice of Satisfaction to the Employer when all outstanding damages, penalties, and costs have been paid in full.

(o) Throughout the administrative enforcement process set forth in this Division,
Employees and Employers have the right to be represented by an attorney or
other representative, at their own expense, and have the right to fully present
all relevant evidence to the Enforcement Official or the Enforcement Hearing
Officer.

(p) The Enforcement Office may collaborate, including entering into a contract
with, with workers’ rights advocates and community-based organizations to
assist in outreach efforts and other governmental agencies to assist in
enforcement.

(q) The Enforcement Office must provide a summary report of its activities,
including information requested by the City Council, each year to the City
Council, as part of the annual budget process.
(“Enforcement Office” added 8-3-2016 by O-20706 N.S.; effective 9-2-2016. Former
Section 39.0113 “Compliance with Legal Agreements” renumbered to Section
39.0114.)

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses, (9-2016)

This Division must not be interpreted to modify any obligation of an Employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing higher wages or more Earned Sick Leave to an Employee. (“Compliance with Legal Agreements” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.) (Renumbered from Section 39.0113 on 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

This Division must not be construed to discourage or prohibit an Employer from providing higher wages or more Earned Sick Leave to its Employees. (“No Effect on Higher Wages or More Earned Sick Leave” added 2-8-2016 by O-20604 N.S.; effective 7-11-2016.) (Renumbered from Section 39.0114 on 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

If any section, subdivision, paragraph, sentence, clause, phrase, or other portion of this Division is, for any reason, declared unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed severable, and such unconstitutionality or invalidity shall not affect the validity of the remaining portions of this Division, which shall continue in full force and effect. (“Effect of Invalidity; Severability” added 2-8-2016 by O–20604 N.S.; effective 7-11-2016.) (Renumbered from Section 39.0115 on 8-3-2016 by O-20706 N.S.; effective 9-2-2016.)

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (11-2024)