Coachella Municipal Code Ch. 5.100 Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy…

As a result of the COVID-19 pandemic, this chapter aims to protect and promote the public health, safety, and welfare during the new coronavirus 19 ("COVID-19") emergency by requiring agricultural, grocery, restaurant, and retail pharmacy stores to provide premium pay for agricultural, grocery, restaurant, and retail pharmacy workers performing work in Coachella. Requiring agricultural, grocery, restaurant, and retail pharmacy stores to provide premium pay to agricultural, grocery, restaurant, and retail pharmacy workers compensates agricultural, grocery, restaurant, and retail pharmacy workers for the risks of working during a pandemic. Agricultural, grocery, restaurant, and retail pharmacy workers face magnified risks of catching or spreading the COVID-19 disease because the nature of their work involves close contact with the public, including members of the public who are not showing symptoms of COVID-19 but who can spread the disease. The provision of premium pay better ensures the retention of these essential workers who are on the frontlines of this pandemic providing essential services and who are needed throughout the duration of the COVID-19 emergency. As such, they are deserving of fair and equitable compensation for their work.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

This chapter shall constitute the "Premium Pay for Agricultural, Grocery, Restaurant, and Retail Pharmacy Workers Ordinance" and may be cited as such.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

For purposes of this chapter:

"Adverse action" means reducing the compensation to a designated worker, garnishing gratuities, temporarily or permanently denying or limiting access to work, incentives, or bonuses, offering less desirable work, demoting, terminating, deactivating, putting a designated worker on hold status, failing to rehire after a seasonal interruption of work, threatening, penalizing, retaliating, or otherwise discriminating against a designated worker for any reason prohibited by Section 5.100.090. "Adverse action" also encompasses any action by the hiring entity or a person acting on the hiring entity's behalf that would dissuade a designated worker from exercising any right afforded by this chapter.

"Aggrieved party" means a designated worker or other person who suffers tangible or intangible harm due to a hiring entity or other person's violation of this chapter.

"Agricultural operation" means any operation devoted to the bona fide production of crops, or animals, or fowl including the production and/or packing of fruits and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery, and floral products; and the production and harvest of products from silviculture (i.e., growing/cultivating trees) activity.

"Agricultural worker" means a worker whose principal employment is in agriculture (including farming; cultivating and tilling the soil; producing, cultivating, growing, irrigating, harvesting any commodity grown on the land; preparing, processing, packing for market and delivery to storage or to market or to carriers for transportation to market any commodity grown in or on the land), and includes migratory agricultural workers and seasonal agricultural workers. Agricultural worker does not include managers, or supervisors.

"City" means the City of Coachella.

"Designated worker" means an agricultural worker, grocery store worker, restaurant worker, retail pharmacy worker employed directly by a hiring entity who is entitled to premium pay pursuant to this chapter.

"Grocery worker" means a worker employed directly by a hiring entity at a grocery store. Grocery worker does not include managers, supervisors, or confidential employees.

"Grocery store" means a store that devotes seventy (70) percent or more of its business to retailing a general range of food products, which may be fresh or packaged. There is a rebuttable presumption that if a store receives seventy (70) percent or more revenue from retailing a general range of food products, then it qualifies as a grocery store.

"Hiring entity" means an agricultural operation, grocery store, restaurant, or retail pharmacy that employs over three hundred (300) designated workers nationally and employs more than five employees per agricultural operation location, grocery store location, restaurant location, or retail pharmacy location in the city of Coachella.

"Premium pay" means additional compensation owed to a designated worker that is separate from hiring entity payments for providing services, bonuses, and commissions, as well as tips earned from customers.

"Respondent" means an agricultural operation, grocery store, restaurant, retail pharmacy, parent company or any person who is alleged or found to have committed a violation of this chapter.

"Restaurant" means a building or place the principal purpose of which is the preparation and serving, on a retail basis, of food and drink to people for consumption on the premises, and where take away meals and drinks or entertainment are also provided.

"Restaurant worker" means a worker employed directly by a hiring entity at a restaurant. Restaurant worker does not include managers, supervisors, or confidential employees.

"Retail pharmacy" means a corporate or chain pharmacy that is licensed as a pharmacy by the state of California and that dispenses medications to the general public at retail prices. Such term does not include a pharmacy that dispenses prescription medications to patients primarily through the mail, nursing home pharmacies, long-term care facility pharmacies, hospital pharmacies, clinics, charitable or not-for-profit pharmacies, government pharmacies, or pharmacy benefit managers.

"Retail pharmacy worker" means a worker employed directly by a hiring entity at a retail pharmacy. Retail pharmacy worker does not include managers, supervisors, or confidential employees.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

For the purposes of this chapter, covered designated workers are limited to those who perform work for a hiring entity where the work is performed in the city of Coachella.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. For purposes of this chapter, hiring entities are limited to those who employ three hundred (300) or more designated workers nationally and employ more than five employees per agricultural operation, grocery store, restaurant, or retail pharmacy location in the city of Coachella.

B. To determine the number of designated workers employed for the current calendar year:

1. The calculation is based upon the average number per calendar week of workers who worked for compensation during the preceding calendar year for any and all weeks during which at least one designated worker worked for compensation. For hiring entities that did not have any designated workers during the preceding calendar year, the number of designated workers employed for the current calendar year is calculated based upon the average number per calendar week of designated workers who worked for compensation during the first ninety (90) calendar days of the current year in which the hiring entity engaged in business.

2. All designated workers who worked for compensation shall be counted, including but not limited to:

(a) Agricultural workers, grocery workers, restaurant workers, and retail pharmacy workers who are not covered by this chapter; and

(b) Designated workers who worked in Coachella.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. Hiring entities shall provide each designated worker with premium pay consisting of an additional four dollars ($4.00) per hour for each hour worked.

B. Hiring entities shall provide the pay required by Subsection 5.100.050 (A) for a minimum of one hundred twenty (120) days retroactive to February 10, 2021, the date that the city of Coachella adopted the related urgency ordinance.

C. The terms of this section shall be in effect for one hundred twenty (120) days following adoption of the February 10, 2021 related urgency ordinance.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. No hiring entity shall, as a result of this chapter going into effect, take any of the following actions:

1. Reduce a designated worker's compensation;

2. Limit a designated worker's earning capacity.

B. It shall be a violation if this chapter is a motivating factor in a hiring entity's decision to take any of the actions in Subsection 5.100.060 (A) unless the hiring entity can prove that its decision to take the action(s) would have happened in the absence of this chapter going into effect.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. Hiring entities shall provide covered designated workers with a written notice of rights established by this chapter. The notice of rights shall be in a form and manner sufficient to inform designated workers of their rights under this chapter. The notice of rights shall provide information on:

1. The right to premium pay guaranteed by this chapter;

2. The right to be protected from retaliation for exercising in good faith the rights protected by this chapter; and

3. The right to bring a civil action for a violation of the requirements of this chapter, including a hiring entity's denial of premium pay as required by this chapter and a hiring entity or other person's retaliation against a covered designated worker or other person for asserting the right to premium pay or otherwise engaging in an activity protected by this chapter.

B. Hiring entities shall provide the notice of rights required by posting a written notice of rights in a location of the agricultural operation, grocery store, restaurant, or retail pharmacy location utilized by employees for breaks, and in an electronic format that is readily accessible to the designated workers. The notice of rights shall be made available to the designated workers via smartphone application or an online web portal, in English and any language that the hiring entity knows or has reason to know is the primary language of the designated worker(s).

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. Hiring entities shall retain records that document compliance with this chapter for covered designated workers.

B. Hiring entities shall retain the records required by Subsection 5.100.080 (A) for a period of two years.

C. If a hiring entity fails to retain adequate records required under Subsection 5.100.080 (A), there shall be a presumption, rebuttable by clear and convincing evidence, that the hiring entity violated this chapter for each covered designated worker for whom records were not retained.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

No hiring entity employing a designated worker shall discharge, reduce in compensation, or otherwise discriminate against any designated worker for opposing any practice proscribed by this chapter, for participating in proceedings related to this chapter, for seeking to exercise their rights under this chapter by any lawful means, or for otherwise asserting rights under this chapter.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

The failure of any respondent to comply with any requirement imposed on the respondent under this chapter is a violation.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. The payment of unpaid compensation, liquidated damages, civil penalties, penalties payable to aggrieved parties, fines, and interest provided under this chapter is cumulative and is not intended to be exclusive of any other available remedies, penalties, fines, and procedures.

B. A respondent found to be in violation of this chapter for retaliation under Section 5.100.090 shall be subject to any appropriate relief at law or equity including, but not limited to reinstatement of the aggrieved party, front pay in lieu of reinstatement with full payment of unpaid compensation plus interest in favor of the aggrieved party under the terms of this chapter, and liquidated damages in an additional amount of up to twice the unpaid compensation.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. Any covered designated worker that suffers financial injury as a result of a violation of this chapter, or is the subject of prohibited retaliation under Section 5.100.090, may bring a civil action in a court of competent jurisdiction against the hiring entity or other person violating this chapter and, upon prevailing, may be awarded reasonable attorney fees and costs and such legal or equitable relief as may be appropriate to remedy the violation including, without limitation: the payment of any unpaid compensation plus interest due to the person and liquidated damages in an additional amount of up to twice the unpaid compensation; and a reasonable penalty payable to any aggrieved party if the aggrieved party was subject to prohibited retaliation.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

A. Nothing in this chapter shall be construed to discourage or prohibit a hiring entity from the adoption or retention of premium pay policies more generous than the one required herein.

B. Nothing in this chapter shall be construed as diminishing the obligation of a hiring entity to comply with any contract or other agreement providing more generous protections to a designated worker than required by this chapter.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

This chapter provides minimum requirements for premium pay while working for a hiring entity during the COVID-19 emergency and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for higher premium pay, or that extends other protections to designated workers; and nothing in this chapter shall be interpreted or applied so as to create any power or duty in conflict with federal or state law. Nothing in this section shall be construed as restricting a designated worker's right to pursue any other remedies at law or equity for violation of their rights.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

The provisions of this chapter are declared to be separate and severable. If any clause, sentence, paragraph, subdivision, section, subsection, or portion of this chapter, or the application thereof to any hiring entity, designated worker, person, or circumstance, is held to be invalid, it shall not affect the validity of the remainder of this chapter, or the validity of its application to other persons or circumstances.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

All of the provisions of this chapter, or any part thereof, may be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute a waiver of all or any of the provisions of this chapter.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)

Except for a collective bargaining agreement provision made pursuant to Section 5.100.160, any waiver by a designated worker of any or all provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable. Other than in connection with the bona fide negotiation of a collective bargaining agreement, any request by a hiring entity to a designated worker to waive rights given by this chapter shall be a violation of this chapter.

(Ord. No. 1174, § 2, 2-10-21; Ord. No. 1175, § 2, 3-10-21)