East Palo Alto Municipal Code Ch. 5.10 Minimum Wage Ordinance

A. This chapter shall be known as the "minimum wage ordinance."

B. The purpose of this chapter is to protect the public health, safety and welfare. It does this by requiring that employers or their respective subcontractors compensate their employees in such a manner as to enable and facilitate their individual self-reliance within the City of East Palo Alto. Therefore, this ordinance adopts a new chapter of the East Palo Alto Municipal Code authorizing a minimum wage within the City of East Palo Alto.

(Ord. No. 06-2020, § 2, 9-1-2020)

As used in this chapter, the following terms shall have the following meanings:

A. "Calendar week" shall mean a period of seven consecutive days starting on Sunday.

B. "City" means the City of East Palo Alto.

C. "Employee" means any person who:

(1) In a calendar week performs at least two hours of work within the geographic boundaries of the City for an employer; and

(2) Qualifies as an employee entitled to payment of a minimum wage from any employer under the California Minimum Wage Law, as provided by the State of California Industrial Welfare Commission.

D. "Employer" means any person (including a natural person, corporation, non-profit corporation, general partnership limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality or any other legal or commercial entity, whether domestic or foreign) who directly or indirectly (including through the services of a temporary services or staffing agency or similar entity) employs or exercises control over the wages, hours, or working conditions of any employee.

E. "Minimum wage" shall have the meaning set forth in Section 5.10.030 of this chapter.

(Ord. No. 06-2020, § 2, 9-1-2020)

Employers shall pay employees no less than the minimum wage set forth in this chapter for each hour worked within the geographic boundaries of the city.

A. On January 1, 2021, the minimum wage shall be an hourly rate of fifteen dollars ($15.00).

B. Beginning on January 1, 2022, and each January thereafter, the minimum wage shall increase by a percentage amount equal to the prior year's increase, if any, in the Consumer Price Index (CPI) for San Francisco-Oakland-San José, as determined by the United States Department of Labor. The change shall be calculated by using the August to August change in the CPI to calculate the annual increase, if any, and rounded to the nearest nickel. A decrease in the CPI shall not result in a decrease in the minimum wage.

C. An employer may not deduct an amount from wages due an employee on account of any tip or gratuity, or credit the amount or any part thereof, of a tip or gratuity, against, or as part of, the wages due the employee from the employer.

D. No employer may fund increases in compensation required by this chapter, nor otherwise respond to the requirements of this chapter, by reducing the wage rate paid to any employee, nor by increasing charges to them for parking, meals, uniforms or other items, nor by reducing the citation or other non-wage benefits of any such employee, nor by increasing the share any employee pays towards her/his benefits, except to the extent such prohibition would be pre-empted by the Federal Employee Retirement Income Security Act.

E. A violation for unlawfully failing to pay the minimum wage shall be deemed to continue from the date immediately following the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date immediately preceding the date the wages are paid in full.

F. All requirements and provisions of this chapter shall be preempted and ineffective if the state minimum wage is or becomes greater than the minimum wage established by this chapter.

(Ord. No. 06-2020, § 2, 9-1-2020)

A. By November 1 or each year, the city shall publish and make available to employers a bulletin announcing the adjusted minimum wage rate, to take effect January 1 of the following year. In conjunction with this bulletin, the city shall provide employers a notice suitable for posting in the workplace, informing employees of the current minimum wage rate and of their rights under this chapter. The notice shall be printed in English, Spanish, and other languages as provided in any implementation regulations under this chapter. Employers shall post these notices in a conspicuous place in the workplace or job site where it will be seen by all employees. Employers' use of such notice shall constitute compliance with this subsection. Failure to post such notice shall constitute a violation of this chapter.

B. Each employer shall give written notification to every current employee, and to each new employee at time of hire, of his or her rights under this chapter, and the name, address, and phone number of the employer. The notification shall be printed in English, Spanish, and other languages as provided in any implementation regulations under this chapter.

(Ord. No. 06-2020, § 2, 9-1-2020)

A. The city manager, or designee, may promulgate regulations for the implementation and enforcement of this chapter. Any regulation promulgated by the city shall have the force and effect of law and may be relied on by employers, employees, and other parties to determine their rights and responsibilities under this chapter. Any regulations may establish procedures for ensuring fair, efficient and cost-effective implementation of this chapter, for monitoring employee compliance with this chapter, and for providing administrative hearings or determining whether an employer has violated the requirements of this chapter.

B. Nothing herein shall preclude the city council from imposing a cost recovery fee on all employers to pay the cost of administering this chapter.

C. Employers shall retain payroll records for a period of three years, and shall allow the city access to these records, with appropriate notice and at a mutually agreeable time, to monitor compliance with this chapter.

D. Where an employer fails to retain adequate payroll records documenting wages paid, or does not allow the city reasonable access to such records, an employee's account is presumed accurate, absent clear and convincing evidence otherwise.

E. An employee or any other person may report to the city in writing any suspected violation of this chapter.

F. The city shall be responsible for investigating any possible violations of this chapter by an employer or other person. The city shall have the authority to inspect workplaces, interview persons, and request the city attorney to subpoena books, papers, records or other items relevant to the enforcement of this chapter.

G. The city shall make every effort to resolve complaints informally, in a timely manner.

(Ord. No. 06-2020, § 2, 9-1-2020)

A. Where prompt compliance is not forthcoming, the city shall take any appropriate enforcement action to secure compliance. In addition to all other civil remedies, the city may enforce this chapter pursuant to Chapter 1 of the East Palo Alto Municipal Code. To secure compliance, the city may use the following enforcement measures:

1. The city may issue an administrative citation with a fine of not more than fifty dollars ($50.00) for each day or portion thereof and for each employee or person as to whom the violation occurred or continued.

2. The city may issue an administrative compliance order.

3. The city may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

B. Any person aggrieved by a violation of this chapter, any entity a member of which is aggrieved by a violation of this chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law may bring a civil action in a court of competent jurisdiction against the employer or other person violating this chapter and, upon prevailing, shall be awarded reasonable attorneys' fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of fifty dollars ($50.00) to each employee or person whose rights under this chapter were violated for each day that the violation occurred or continued, reinstatement in employment, and/or injunctive relief.

C. This section shall not be construed to limit an employee's right to bring legal action for a violation of any other laws concerning wages, hours, or other standards or rights, nor shall exhaustion of remedies under this chapter be a prerequisite to the assertion of any right.

D. Except where prohibited by state or federal law, city agencies or departments may revoke or suspend any registration certificates, permits, or licenses held or requested by the employer until such time as the violation is remedied.

E. The remedies for violation of this chapter include, but are not limited to:

1. Reinstatement, and the payment of back wages unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of fifty dollars ($50.00) to each employee or person whose rights under this chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this code or state law.

2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Sec. 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Sec. 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

3. Reimbursement of the city's administrative costs of enforcement and reasonable attorney's fees.

F. If a repeated violation of this chapter has been finally determined, the city may require the employer to post public notice of the employer's failure to comply in a form determined by the city.

(Ord. No. 06-2020, § 2, 9-1-2020)

A. It shall be unlawful for an employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected under this chapter. Rights protected under this chapter include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this chapter; and the right to inform any person of his or her potential rights under this chapter and to assist him or her in asserting such rights. Protections of this chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this chapter.

B. Taking adverse action against a person, including, without limitation, terminating employment, within one hundred twenty days (120) days of the person's exercise of rights protected under this chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights, unless there is clear and convincing evidence of just cause for such discharge.

(Ord. No. 06-2020, § 2, 9-1-2020)

A. Except for employees in the property services industry (i.e., janitors, landscapers, groundskeepers, and security guards), the provisions of this chapter may be waived in whole or in part with respect to employees covered under a collective bargaining agreement if all of the following circumstances apply:

1. Both parties to the collective bargaining agreement agree in writing to such waiver in whole or in part; and

2. The collective bargaining agreement contains provisions which specifically allow waivers of municipal minimum wage rates in excess of the contractually required wage rates for any group or groups of covered employees; and

3. The entire collective bargaining agreement, including the provisions referred to in subsection A.2 above, was negotiated and entered into prior to the date or when such waiver would take effect.

(Ord. No. 06-2020, § 2, 9-1-2020)

The purpose of this chapter is to ensure minimum labor standards. This chapter does not preempt or prevent the establishment of superior employment standards (including higher wages) or the expansion of coverage by ordinance, resolution, contract, or any other action of the city. This chapter shall not be construed to limit a discharged employee's right to bring a common law cause of action for wrongful termination.

(Ord. No. 06-2020, § 2, 9-1-2020)

This chapter shall not be applied to the extent it will cause the loss of any federal or state funding of city activities.

(Ord. No. 06-2020, § 2, 9-1-2020)