Chapter 9.88 — COMMUTER BENEFIT PROGRAM

Sections: 9.88.010 Findings. 9.88.020 Definitions. 9.88.030 Commuter benefit program. 9.88.040 Enforcement. 9.88.041 Employee complaints to City. 9.88.042 Private rights of action. 9.88.050 Severability.

A. The City of Berkeley is committed to protecting the public health, safety, welfare and environment. Air pollution is one of the major public health threats in Berkeley and contributes to asthma and other respiratory diseases. Encouraging commuters to use public transit, vanpools, and bicycles to reach their place of employment will reduce air pollution from private cars.

B. Berkeley’s General Plan Policies T-3, T-10, and T-14 call for programs and laws to encourage employers to enable more employees to use public transit and other alternative commute modes through provision of pre-tax commute benefits.

C. The Bay Area Air Quality Management District’s 2005 Ozone Strategy Transportation Control Measures 1 and 13 target commute travel, which accounts for approximately twenty-five (25) percent of trips and thirty-three (33) percent of vehicle miles travelled on a typical weekday.

D. The Federal Transit Administration Transit Cooperative Research Program Report 107 (2005) reports that employer transit benefits programs reduce single occupancy commuting by an average of ten (10) percent.

E. Expanded commuter benefits programs are expected to help the City achieve its adopted goal to reduce Berkeley greenhouse gas emissions thirty-three (33) percent by 2020, and eighty (80) percent by 2050.

F. The City of Berkeley and many public and private employers in Berkeley currently offer employees the opportunity to elect to use pre-tax dollars to purchase qualifying transit and vanpool expenses.

G. The City will assist employers to establish the required commuter benefit programs through its website, print materials, webinars, and other technical assistance.

H. Federal tax law, Internal Revenue Code Section 132(f), allows employers and employees to reduce the cost of public transit by enabling employers to deduct as a business expense, qualified transportation benefits that the employer provides for employees’ personal transportation costs for commuting to and from work, or by allowing employees to elect to purchase qualifying transit passes or reimbursement for vanpool rides with pre-tax dollars. Additional benefits and maximum deduction allowances may be changed or added to IRS Code Section 132(f) from time to time. Any commute benefits allowed pursuant to IRS Code Section 132(f) as amended from time to time, including any added after passage of the ordinance codified in this chapter are to be included in the ordinance codified in this chapter by reference, with the exception of pre-tax commute parking benefits.

I. This chapter will preserve and enhance the environment within the City of Berkeley and is exempt from the requirements of the California Environmental Quality Act ("CEQA"), pursuant to CEQA Guidelines 15307 and 15308. (Ord. 7113-NS § 1 (part), 2009)

Whenever used in this chapter, the following terms shall have the meanings set forth below.

A. "Alternative commute mode" shall mean public transit (bus, train, ferry, etc.), vanpool, carpool (including "casual carpool"), bicycling, and walking.

B. "City" shall mean the City of Berkeley.

C. "Covered employee" shall mean any person who:

1. Performed an average of at least ten (10) hours of work per week for compensation within the
geographic boundaries of Berkeley for the same employer within the previous twelve (12) months; and

2. Qualifies as an employee entitled to payment of a minimum wage from the employer under the
California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders
published by the California Industrial Welfare Commission, or is a participant in a welfare-to-work program.

D. "Covered employer" shall mean an employer, as defined in Section 18 of the California Labor Code, for which an average of ten (10) or more persons per week performs work for compensation. In determining the number of covered employees performing work for an employer during a given week, all persons performing work for compensation on a full-time, part-time or temporary basis, including those who perform work outside of the geographic boundaries of Berkeley, shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity. "Covered employer" shall not include any governmental entity.

E. "Transit expense" shall mean any pass, token, fare card, voucher, or similar item entitling a person to transportation on public transit, including but not limited to, travel by ferry, bus, light rail or train by AC Transit, BART, AMTRAK, Caltrain, or other regional public transit provider.

F. "Vanpool" shall mean a commuter highway vehicle within the meaning of 26 U.S.C. Section 132(f)(5)(B), as the federal law may be amended from time to time, which currently means any highway vehicle that has a seating capacity of at least six adults (not including the driver), and at least eighty (80) percent of the mileage use of which can reasonably be expected to be:

1. For the purpose of transporting employees in connection with travel between their residences and their
place of employment; and

2. On trips during which the number of employees transported for such purposes is at least one-half of the
seating capacity of such vehicle (not including the driver).

G. "Bicycle expense" shall mean reasonable expenses incurred by the employee for the purchase of a bicycle and bicycle improvements, repair, and storage, if such bicycle is regularly used for travel between the employee’s residence and place of employment, or other allowable expenses as allowed by IRS code 132(f). (Ord. 7113-NS § 1 (part), 2009)

No later than one year after the effective date of this chapter, all covered employers shall provide at least one of the following transportation benefit programs to covered employees:

A. A Pre-Tax Election. A program, consistent with allowable pre-tax commute benefits, except parking benefits, allowed by Internal Revenue Code Section 132(f), allowing employees to elect to exclude from taxable wages and compensation employee commuting costs incurred for transit expenses, vanpool expenses, or bicycle expenses, up to the maximum level allowed by federal tax law; or

B. Employer Paid Benefit. A program whereby the employer supplies an annual, monthly or other form of transit pass, or reimbursement for equivalent vanpool expenses at least equal in value to the purchase of the appropriate benefit which shall not exceed the cost of an adult monthly AC Transit regular pass, for the public transit system requested by each employee or to reimburse qualified vanpool charges; or

C. Employer Provided Transit. Commute transportation furnished by the employer at no cost to the employee in a vanpool or bus, or similar multi-passenger vehicle operated by or for the employer. (Ord. 7113-NS § 1 (part), 2009)

A. An employee who alleges violation of any provision of the requirements of this chapter may report such acts to the City. City staff will respond to any such complaints by providing compliance information and instructional materials to the employer.

B. Any complaint received shall be treated as a confidential matter, to the extent permitted by law. Any complaint received and all investigation documents related thereto shall be deemed exempt from disclosure pursuant to California Government Code Sections 6254 and 6255. (Ord. 7113-NS § 1 (part), 2009)

A. An employee claiming violation of this chapter may bring an action in the Superior Court of the State of California against an employer. In order to file such an action, the employee must have made a complaint to the City and allowed sufficient time for the employer to institute a program as required by this chapter in response to that complaint.

B. No remedy set forth in this chapter is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce any rights hereunder in a court of law.

C. Nothing in this chapter shall be interpreted to authorize a right of action against the City. (Ord. 7113-NS § 1 (part), 2009)

If any word, phrase, sentence, part, section, subsection, or other portion of this chapter, or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect. The City Council hereby declares that it would have passed this title, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional. (Ord. 7113-NS § 1 (part), 2009)