Chapter 5.91 — PREMIUM PAY FOR GROCERY WORKERS

As a result of the COVID-19 pandemic and the "Stay at Home" order issued by California Governor Gavin Newsom and the "Safer at Home" order issued by the City of Long Beach, this Ordinance aims to protect and promote the public health, safety, and welfare during the new coronavirus 19 (COVID-19) emergency by requiring grocery stores to provide premium pay for grocery workers performing work in Long Beach. Requiring grocery stores to provide premium pay to grocery workers compensates grocery workers for the risks of working during a pandemic. Grocery 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-21-0004(Emerg.) § 1, 2021)

This ordinance shall constitute the "Premium Pay for Grocery Workers Ordinance" and may be cited as such.

(ORD-21-0004(Emerg.) § 1, 2021)

For purposes of this Ordinance:

"Adverse action" means reducing the compensation to a grocery worker, garnishing gratuities, temporarily or permanently denying or limiting access to work, incentives, or bonuses, offering less desirable work, demoting, terminating, deactivating, putting a grocery worker on hold status, failing to rehire after a seasonal interruption of work, threatening, penalizing, retaliating, or otherwise discriminating against a covered grocery worker for any reason prohibited by Section 5.91.090.

"Adverse action" also encompasses any action by the hiring entity or a person acting on the hiring entity's behalf that would dissuade a grocery worker from exercising any right afforded by this ordinance.

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

"City" means the City of Long Beach.

"Covered grocery worker" means a grocery worker employed directly by a hiring entity who is entitled to premium pay pursuant to this Ordinance.

"Grocery store" means a store that devotes seventy percent (70%) 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 percent (70%) or more revenue from retailing a general range of food products, then it qualifies as a grocery store.

"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.

"Hiring entity" means a grocery store that employs over three hundred (300) grocery workers nationally and employs more than fifteen (15) employees per grocery store in the City of Long Beach.

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

"Respondent" means a grocery store, parent company or any person who is alleged or found to have committed a violation of this Ordinance.

(ORD-21-0004(Emerg.) § 1, 2021)

For the purposes of this Ordinance, covered grocery workers are limited to those who perform work for a hiring entity where the work is performed in the City of Long Beach.

(ORD-21-0004(Emerg.) § 1, 2021)

A.

For purposes of this Ordinance, hiring entities are limited to those who employ three hundred (300) or more grocery workers nationally and employ more than fifteen (15) employees per grocery store in the City of Long Beach.

B.

To determine the number of grocery workers employed for the current calendar year:

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

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

a.

Grocery workers who are not covered by this Ordinance; and

b.

Grocery workers who worked in Long Beach.

(ORD-21-0004(Emerg.) § 1, 2021)

A.

Hiring entities shall provide each grocery 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 5.91.050.A for a minimum of one hundred twenty (120) days from the effective date of this Ordinance.

C.

Unless extended by City Council, this ordinance shall expire in one hundred twenty (120) days.

(ORD-21-0004(Emerg.) § 1, 2021)

A.

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

Reduce a grocery worker's compensation;

Limit a grocery worker's earning capacity.

B.

It shall be a violation if this Ordinance is a motivating factor in a hiring entity's decision to take any of the actions in Subsection 5.91.060.A, unless the hiring entity can prove that its decision to take the action(s) would have happened in the absence of this Ordinance going into effect.

(ORD-21-0004(Emerg.) § 1, 2021)

A.

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

The right to premium pay guaranteed by this Ordinance;

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

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

B.

Hiring entities shall provide the notice of rights required by posting a written notice of rights in a location of the grocery store utilized by employees for breaks, and in an electronic format that is readily accessible to the grocery workers. The notice of rights shall be made available to the grocery 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 grocery worker(s).

(ORD-21-0004(Emerg.) § 1, 2021)

A.

Hiring entities shall retain records that document compliance with this Ordinance for covered grocery workers.

B.

Hiring entities shall retain the records required by Subsection 5.91.080.A for a period of two (2) years.

C.

If a hiring entity fails to retain adequate records required under Subsection 5.91.080.A, there shall be a presumption, rebuttable by clear and convincing evidence, that the hiring entity violated this Ordinance for each covered grocery worker for whom records were not retained.

(ORD-21-0004(Emerg.) § 1, 2021)

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

(ORD-21-0004(Emerg.) § 1, 2021)

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

(ORD-21-0004(Emerg.) § 1, 2021)

A.

The payment of unpaid compensation, liquidated damages, civil penalties, penalties payable to aggrieved parties, fines, and interest provided under this Ordinance 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 Ordinance for retaliation under Section 5.91.090 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 Ordinance, and liquidated damages in an additional amount of up to twice the unpaid compensation.

(ORD-21-0004(Emerg.) § 1, 2021)

A.

Any covered grocery worker that suffers financial injury as a result of a violation of this Ordinance, or is the subject of prohibited retaliation under Section 5.91.090, may bring a civil action in a court of competent jurisdiction against the hiring entity or other person violating this Ordinance 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-21-0004(Emerg.) § 1, 2021)

A.

Nothing in this Ordinance 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 Ordinance 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 grocery worker than required by this Ordinance.

(ORD-21-0004(Emerg.) § 1, 2021)

This Ordinance 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 grocery workers; and nothing in this Ordinance 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 grocery worker's right to pursue any other remedies at law or equity for violation of their rights.

(ORD-21-0004(Emerg.) § 1, 2021)

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

(ORD-21-0004(Emerg.) § 1, 2021)