Los Angeles County Municipal Code Ch. 8.204 Covid-19 Hero Pay

To protect the public health and welfare during the COVID-19 pandemic, California Governor Gavin Newsom and the County of Los Angeles have issued "Safer at Home" declarations that have affected every sector of the economy. While many sectors were able to transition their workforce to working from home, millions of workers in face-to-face service industries were deemed essential to ensure that our communities continue to operate, and basic needs continue to be fulfilled.

The Board of Supervisors finds that frontline grocery retail and drug retail workers are essential workers who face potential exposure to COVID-19 through interactions with customers and co-workers. Because of their work on the frontlines, grocery retail and drug retail workers have been met with COVID-19 exposures and outbreaks in their workplaces. Their work has increased the workers' COVID-19 exposure risks and contributed to the psychological distress workers have felt during the pandemic.

The Board of Supervisors finds that frontline grocery retail and drug retail workers are among the heroes of this pandemic, putting their lives on the line - often for low wages and minimal benefits - to maintain the food supply and distribution system necessary for healthy communities. Despite their importance to our communities, their employers have not all provided sufficient wages during the COVID-19 pandemic to compensate frontline employees for their critical function to our society and the significant risk they face in the workplace. Working in an essential industry, grocery and drug retail employees have not had the luxury of working from home to help their children with distance-learning and, as a result, have incurred additional childcare expenses.

The County of Los Angeles has an interest in protecting the employment environment for frontline grocery retail and drug retail workers and in maintaining the supply and distribution-chain of food. Through this ordinance, the County seeks to sustain the stability of the food supply chain by supporting the essential workers who continue to work during the pandemic, and thereby safeguard the health, safety, and welfare of the public. The Board further finds it is imperative to act with urgency to support these frontline workers to be justly compensated for the unprecedented risks they encounter on the job during this pandemic and require their employers to provide for additional hazard pay, or "Hero Pay."

(Ord. 2021-0004U § 1, 2021.)

A.

"Base Wage" means the hourly wage paid to Employees as of the effective date of this Chapter, less Hero Pay owed under this Chapter or any other premium hourly rate already paid to compensate Employees for working during the COVID-19 pandemic, such as Voluntary Hazard Pay or Holiday Premium Pay.

B.

"Board of Supervisors" means the Los Angeles County Board of Supervisors.

C.

"County" means the County of Los Angeles.

D.

"DCBA" means the Los Angeles County Department of Consumer and Business Affairs.

E.

"Employee" means any person who:

In a particular week performs at least two hours of work within the unincorporated areas of the County for an Employer; and

Qualifies as an employee entitled to payment of a minimum wage from any 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.

Presumption of Employee. For purposes of this Chapter, a person performing work for an Employer is presumed to be an Employee of that Employer. If an Employer asserts a person is not an Employee covered by this Chapter either due to the person's status as a bona fide independent contractor, or due to the person not being required to physically appear at a Store to perform their job function during the COVID-19 pandemic, then the Employer has the burden to demonstrate that the person is not an Employee.

F.

"Employer" means a person, as defined in section 18 of the California Labor Code, including a corporate officer or executive, that meets all of the following:

Directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee;

Operates at least one Store;

Either is (a) a corporate entity the stock of which is traded on a public stock exchange, or (b) employs 300 or more workers for compensation nationwide in the pay period preceding the effective date of this Chapter; and

Employs more than 10 Employees per Store in the pay period preceding the effective date of this Chapter.

G.

"Hero Pay" means the additional wage Employers are required to pay Employees for work performed at Stores due to the risks associated with COVID-19 pursuant to Section 8.204.040.A, in addition to an Employee's Base Wage or Holiday Premium Pay, whichever is applicable at the time of hours worked. The Hero Pay rate shall not include compensation already owed to Employees, Holiday Premium rates, gratuities, service charge distributions, or other bonuses.

H.

"Holiday Premium Pay" means the hourly wage paid to Employees for performing work during a holiday or holiday season.

I.

"Retaliatory Action" means the refusal to hire, or the discharge, suspension, demotion, penalization, discipline, lowering of the Base Wage or Holiday Premium Pay, discrimination, or any other adverse action taken against an Employee regarding the terms and conditions of the Employee's employment, for opposing any practice proscribed by this Chapter, for participating in proceedings related to this Chapter, for seeking to enforce rights under this Chapter by any lawful means, or for otherwise asserting rights under this Chapter.

J.

"Store" means any of the following located within the unincorporated area of the County:

A retail grocery store that sells primarily food or household goods, including fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked goods, and/or prepared foods; or

A retail drug store that sells a variety of prescription and non-prescription medicines and miscellaneous items, including but not limited to drugs, pharmaceuticals, sundries, fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, and prepared foods; or

A retail store that is over 85,000 square feet and:

i.

Dedicates 10 percent or more of its sales floor to groceries, including, but not limited to, produce, meats, poultry, fish deli products, dairy products, canned foods, dry foods, beverages, baked foods, and/or prepared foods; or

ii.

Dedicates 10 percent or more of its sales floor to drug retail, including, but not limited to, drugs, pharmaceuticals, sundries, produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, prepared foods, and other merchandise.

K.

"Voluntary Hazard Pay" means additional premium pay for COVID-19 related purposes above and beyond an Employee's Base Wage.

(Ord. 2021-0004U § 1, 2021.)

This Chapter does not apply to public entities, such as federal, State, County, and city entities, including school districts.

(Ord. 2021-0004U § 1, 2021.)

A.

Hero Pay Amount. For each hour of work performed by an Employee at a Store operated by an Employer, the Employer shall pay the Employee no less than five dollars ($5) per hour, in addition to the Employee's Base Wage. Such Hero Pay is intended to compensate an Employee for time spent physically present performing work at a Store where there is a heightened potential for exposure to COVID-19. Hero Pay shall not be required for any time an Employee is not physically present to perform work at a Store location, such as when remote working, teleworking, or on paid leave.

B.

Offsets Prohibited. Employers shall not reduce an Employee's Base Wage, Holiday Premium Pay, or other Employee benefits to offset the requirements of this Chapter.

C.

Election to Receive Hero Pay as Paid Leave. An Employee may elect to receive paid leave in lieu of Hero Pay.

Must be in Writing. An election to receive paid leave in lieu of Hero Pay must be made in a writing signed by the Employee. If the Employee elects to receive paid leave in lieu of Hero Pay, the Employer shall convert the Hero Pay into paid leave.

Calculation of Paid Leave. An Employee accrues one full hour of paid leave when the Hero Pay earned totals one hour of the Employee's Base Wage.

Paid Leave Increments. An Employee is entitled to earn paid leave in less than one hour increments.

Use of Paid Leave. Employers must allow Employees to use accrued paid leave under this subsection in the same way Employers allow other paid leaves to be used by their Employees.

(Ord. 2021-0004U § 1, 2021.)

A.

If an Employer provides an Employee Voluntary Hazard Pay, the obligation to provide Hero Pay under this Chapter shall be reduced for each cent the Employer provides an Employee with such Voluntary Hazard Pay. No Employer shall be credited prospectively for any past payments. No Employer shall be credited for any hourly premiums already owed to Employees, such as, but not limited to, Holiday Premiums. Nothing in this Chapter shall be interpreted to prohibit an Employer from paying more than five dollars ($5) per hour in Hero Pay.

B.

In the event the credit for Voluntary Hazard Pay is challenged, the DCBA is authorized to evaluate the credibility and sufficiency of proof to determine if the Employer shall receive credit. An Employer must maintain and make available for inspection by the DCBA the following showings of proof to receive credit for Voluntary Hazard Pay:

A copy of the Employer's Voluntary Hazard Pay policy.

A concise statement explaining Employees' hourly base wages, hourly Holiday Premiums, hourly Voluntary Hazard Pay, and any other wage bonuses received during the prior 12 months.

Records and other information that allows the DCBA to review for compliance by assessing wages for the prior 12 months and that is itemized in such a way that the DCBA can understand an Employee's Base Wage distinguished from Holiday

Premiums and other bonuses or pay increases that are separate and distinct from Voluntary Hazard Pay. Acceptable evidence of Voluntary Hazard Pay wage includes:

i.

A spreadsheet of all Employees and their wages for each pay period for the prior 12 months that allows the DCBA to distinguish Base Wage from Holiday Premium Pay and other bonuses or pay increases that are separate and distinct from Voluntary Hazard Pay. The foregoing does not exempt any Employer from maintaining, and providing access to, the underlying payroll records described above.

ii.

Any offer of proof under this subsection B shall be accompanied by a written acknowledgement that it was submitted under penalty of perjury.

(Ord. 2021-0004U § 1, 2021.)

A.

Hero Pay Workplace Posting. Every Employer shall post in a conspicuous place at every Store located within the unincorporated areas of the County where any Employee works a written notice prepared and made available electronically by the DCBA informing Employees of the Hero Pay Ordinance and of their rights under this Chapter.

B.

Pay Period Statement. Each Pay Day, as that term is defined in Section 8.101.030, Employers shall provide each Employee with all information required by section 226(a) of the California Labor Code and County Code Section 8.101.060.C, as well as the following additional information: (1) the hourly rate of Hero Pay required by this Chapter or Voluntary Hazard Pay paid by the Employer; (2) the amount of Hero Pay, Paid Leave in lieu of Hero Pay, or Voluntary Hazard Pay earned by the Employee in the pay period; and (3) the number of hours of work performed that entitled the Employee to Hero Pay or Voluntary Hazard Pay in the pay period.

C.

Supplemental Disclosure Allowed. Nothing in this Section shall require Employers to duplicate disclosures required by State law, including sections 226 and 2810.5 of the California Labor Code. Disclosures required by this Section may be satisfied by supplementing any State-mandated disclosure.

(Ord. 2021-0004U § 1, 2021.)

A.

Payroll Records. Employers shall keep records necessary to demonstrate compliance with this Chapter, including accurate and complete payroll records pertaining to each Employee that document the name, address, occupation, dates of employment, rate or rates of pay, amount paid each Pay Period, the hours worked for each Employee, and the formula by which each Employee's wages are calculated.

B.

Retention Period. Every Employer shall retain payroll records required in subsection A pertaining to each Employee for a period of four years.

C.

Records and Interview Access; Cooperation with Investigations. To monitor and investigate compliance with the requirements of this Chapter, every Employer shall: (a) allow the DCBA access to such records required in subsection A; (b) allow the DCBA to interview persons, including Employees, during normal business hours; and (c) cooperate with the DCBA investigators.

D.

Presumption of Violation. There shall be a rebuttable presumption that an Employer violated this Chapter if an allegation is made concerning an Employee's entitlement to Hero Pay under this Chapter and an Employer does not comply with the requirements of this Section to maintain or retain payroll records, or does not allow the DCBA reasonable access to such records.

E.

Records Access Charges. When an Employer demonstrates to the DCBA that the Employer will incur a fee or charge for providing the records required in this Section, the Employer shall be required to provide the DCBA with only the prior two years of records, unless the DCBA determines that obtaining four years of records is reasonable and necessary for the enforcement of this Chapter.

(Ord. 2021-0004U § 1, 2021.)

A.

No Employer may discharge, reduce in compensation, or otherwise discriminate against any Employee for opposing any practice proscribed by this Chapter, for requesting Hero Pay under this Chapter, for participating in proceedings related to this Chapter, for seeking to enforce rights under this Chapter by any lawful means, or for otherwise asserting rights under this Chapter. Rights protected under this Chapter include: 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 potential rights under this Chapter and to assist in asserting such rights. Protections of this Chapter shall apply to any Employee who mistakenly, but in good faith, alleges noncompliance with this Chapter.

B.

Rebuttable Presumption of Retaliation. Taking adverse action against an Employee, including lowering Employees' Base Wage or Holiday Premium Pay or reduction of hours, within 90 days of the Employee's exercise of rights protected under this Chapter, shall raise a rebuttable presumption of the Employer having done so in retaliation for the exercise of such rights.

(Ord. 2021-0004U § 1, 2021.)

A.

Administrative Fines. An administrative fine payable to the County and/or Employee may be assessed for a violation of any provision of this Chapter as specified below. An administrative fine may be assessed through a Wage Enforcement Order issued to the Employer by the DCBA in the manner set forth in Chapter 8.101.

Calculation of Administrative Fines. Each and every day that a violation exists constitutes a separate and distinct violation. The maximum administrative fine may be increased cumulatively by 50 percent for each subsequent violation of the same provision by the same Employer within a three-year period. The maximum administrative fine that may be imposed by a Wage Enforcement Order in a calendar year for each type of violation listed above shall be $20,000 per Employee, per year, with the exception of a retaliation violation, in which case the maximum fine shall be $30,000 per Employee, per year.

C.

Payments to the County; Due Date; Late Payment Fee. Administrative fines payable to the County of Los Angeles are due within 30 days from the date of the Wage Enforcement Order, if applicable. The failure of any Employer to pay an administrative fine within 30 days shall result in the assessment of an additional late fee. The amount of the additional late fee shall be ten percent of the total amount of the administrative fine assessed for each month the amounts are unpaid, compounded to include already accrued late administrative fines that remain unpaid. The County may exercise its discretion regarding the fines, penalties, and fees levied based on the severity of the violation, the length of the violation, and whether the violation was the first of its kind for the Employer.

D.

Collections of Amounts Due. The failure of any Employer to pay amounts owed to the County under this Chapter when due shall constitute a debt to the County. The County may file a civil action or, to the extent feasible under State law, create and impose a lien against any property owned or operated by an Employer or other person who fails to pay an administrative fine assessed by the DCBA, or pursue any other legal remedy to collect such money.

E.

Successor Liability. If any Employer ceases its business operations, sells out, exchanges, or otherwise disposes of the Employer's business or stock of goods, then any person who becomes a successor to the business shall become liable for the unpaid amount of the remedies defined in the Wage Enforcement Order if, at the time of the conveyance of the business, the successor has actual knowledge of the fact and amount of the Wage Enforcement Order.

F.

Payments to Employees; Fines and Restitution. Every Employer who violates this Chapter, or any portion thereof, shall be liable to the Employee whose rights were violated for back wages unlawfully withheld and a fine of $100 for each day that the violation occurred or continued. A violation for unlawfully withholding wages 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 Chapter 2 of the California Labor Code, to the date immediately preceding the date the wages are paid in full. For retaliatory action by the Employer, the Employee shall be entitled to reinstatement of his or her prior position, assignment, or job, if applicable, and a trebling of all back wages, fines, and penalties.

G.

Interest. In any administrative or civil action brought for the nonpayment of wages under this Chapter, the DCBA or the court, shall award interest on all due and unpaid wages, fines, and penalties at the rate of interest specified in subdivision (b) of section 3289 of the California Civil Code, which shall accrue from the date 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.

(Ord. 2021-0004U § 1, 2021.)

A.

Private Right of Action. An Employee claiming a violation of this Chapter may file an action in the Superior Court of the State of California against an Employer, within three years of the occurrence of the alleged violation, and may be awarded:

Reinstatement to the position from which the Employee was discharged in violation of this Chapter.

Back pay unlawfully withheld.

All penalties and/or fines imposed pursuant to other provisions of this Chapter or State law, as determined by the court.

For retaliatory action by an Employer, the Employee shall be entitled to a trebling of lost wages and penalties and/or fines imposed, in addition to reinstatement, as determined by the court.

Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 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 Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.

Other legal or equitable relief the court may deem appropriate.

If an Employee is the prevailing party in any legal action taken pursuant to this Chapter, the court may award reasonable attorneys' fees and costs as part of the costs recoverable.

B.

Administrative Complaint. Any Employee, or any other person, may file a complaint with the DCBA alleging a potential violation of this Chapter. A complaint should include a statement of the dates, places, and persons or entities responsible for such violation. Complaints must be filed within three years after the occurrence of the alleged violation of this Chapter.

(Ord. 2021-0004U § 1, 2021.)

A.

Wage Enforcement Authority. The Department of Consumer and Business Affairs is authorized to investigate complaints of alleged violation of this Chapter and to enforce the requirements of this Chapter in the same manner, and subject to the same procedures and appeals, as set forth in Chapter 8.101, the Los Angeles County Wage Enforcement Ordinance. That includes all enforcement powers and duties, investigative authority, access privileges to Employer records, confidentiality, settlement authority, referral of violations to appropriate law enforcement agencies, and authority to issue notices of violation, correction orders, and wage enforcement orders.

B.

Payments on Employees' Behalf. The County, when enforcing on behalf of an Employee, has the authority to require that payment of all amounts due under this Chapter be paid directly to the County. The failure of an Employer to pay any amounts due under this Chapter shall constitute a debt to the County. The County, as plaintiff and/or judgment creditor, may file a civil action on behalf of an Employee and/or the County or, to the extent feasible under State law, create and impose a lien against any property owned or operated by an Employer or other person who fails to pay wages, penalties, and administrative fines assessed by the DCBA, or pursue other legal and equitable remedies available to the County. The County shall be awarded reasonable attorneys' fees and costs, as well as costs associated with enforcing a violation under this Chapter.

C.

Nothing in this Chapter shall limit or otherwise prohibit any governmental agency with jurisdiction over wage-related claims from enforcing, or pursuing remedies on behalf of affected Employees permitted by, the provisions of this Chapter.

(Ord. 2021-0004U § 1, 2021.)

Any waiver by an Employee of any or all of the provisions of this Chapter shall be deemed contrary to public policy and shall be void and unenforceable.

(Ord. 2021-0004U § 1, 2021.)

A.

The remedies, fines, penalties, and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, fines, penalties, and procedures. By filing a complaint with the County, an Employee is not precluded from being able to recover remedies available to them under any other code, regulation, or law. The procedures established in this Chapter shall be in addition to any other criminal, civil, or other remedy established by law that may be pursued to address violations of this Chapter. An administrative citation issued pursuant to this Chapter, or

Chapter 8.101, shall not prejudice or adversely affect any other action, civil or criminal, that may be filed to prosecute or abate a violation, or to seek compensation for damages suffered.

B.

Any Employee aggrieved by a violation of this Chapter, the County, or any other person or entity acting on behalf of the public, as provided for under applicable State law, may file a civil action in a court of competent jurisdiction against the Employer violating this Chapter and, upon prevailing, 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 fines in the amount of $100 to each Employee whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief, and shall be awarded reasonable attorneys' fees and costs. Any person or entity enforcing this Chapter on behalf of the public, as provided for under applicable State law, upon prevailing, shall be entitled only to equitable, injunctive, or restitutionary relief, and reasonable attorneys' fees and costs. Nothing in this Chapter shall be interpreted as restricting, precluding, or otherwise limiting a separate or concurrent criminal prosecution under the Los Angeles County Code or State law. Jeopardy shall not attach as a result of any administrative or civil enforcement action taken under this Chapter.

(Ord. 2021-0004U § 1, 2021.)

Nothing in this Chapter shall be interpreted or applied to create any power or duty in conflict with any federal or State law.

(Ord. 2021-0004U § 1, 2021.)

If any subsection, sentence, clause, or phrase of this Chapter is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter. The Board of Supervisors hereby declares that it would have adopted this Chapter and each and every subsection, sentence, clause, and phrase not declared invalid or unconstitutional, without regard to whether any portion of the Chapter would be subsequently declared invalid or unconstitutional.

(Ord. 2021-0004U § 1, 2021.)

A.

Immediate Effect. This Chapter shall be and is hereby declared to be in full force and effect immediately upon its passage by at least a four-fifths (4/5) vote of the Board of Supervisors.

B.

Operative Date and Duration of Hero Pay Requirement. The requirement to pay Hero Pay, as provided in this Chapter, shall commence at 12:00 a.m. the Friday immediately following adoption of this Chapter by the Board of Supervisors (the "Operative Date"), and shall continue for 120 days.

C.

Grace Period. An Employer shall be relieved of liability for non-payment of Hero Pay during the first 45 days this Chapter is operative, so long as Hero Pay begins accruing on the Operative Date of this Chapter, and the accrued amount is paid in full on or before the next pay day, as defined in Section 8.101.030, immediately following the 45th day.

(Ord. 2021-0004U § 1, 2021.)

A.

This Chapter is necessary for the protection of life, property, health, safety, and welfare of the public and is adopted pursuant to the powers vested in the County of Los Angeles under the laws and the Constitution of the State of California, including the police powers vested in the County pursuant to Article XI, section 7 of the California Constitution, and section 1205(b) of the California Labor Code.

B.

This Chapter 8.204 is approved pursuant to sections 25123(d) and 25131 of the California Government Code, allowing for ordinances for the immediate preservation of the public peace, health, or safety.

(Ord. 2021-0004U § 1, 2021.)