Montebello Municipal Code Ch. 5.10 Premium Pay for Grocery or Drug Store Workers

As a result of the COVID-19 pandemic and the "Stay at Home" order issued by California Governor Gavin Newsom, this chapter aims to protect and promote the public health, safety, and welfare during the new coronavirus 19 (COVID-19) emergency by requiring grocery or drug store stores to provide premium pay for grocery or drug store and drug store workers performing work in Montebello. Requiring grocery or drug stores to provide premium pay to grocery or drug store workers compensates grocery or drug store workers for the risks of working during a pandemic. Grocery or drug store 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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

This chapter shall constitute the "premium pay for grocery and drug store workers ordinance" and may be cited as such.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

For purposes of this chapter:

"Adverse action" means reducing the compensation to a grocery or drug store 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 or drug store worker on hold status, failing to rehire after a seasonal interruption of work, threatening, penalizing, retaliating, or otherwise discriminating against a covered grocery or drug store worker for any reason prohibited by Sections 5.10.070 or 5.10.100.

"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 or drug store worker from exercising any right afforded by this chapter.

"Aggrieved party" means a grocery or drug store 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 Montebello.

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

"Drug store" means a store that devotes seventy percent or more of its business to retailing a general range of drugs, pharmaceuticals, cosmetics and related products, including food products, which may be fresh or packaged. There is a rebuttable presumption that if a store receives seventy percent or more revenue from retailing a general range of drugs, pharmaceuticals, cosmetics and related products, including food products, then it qualifies as a drug store.

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

"Grocery store" means a store that devotes seventy 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 percent 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 or drug store that employs over three hundred grocery or drug store workers nationally and employs more than fifteen employees per grocery or drug store in the city of Montebello.

"Premium pay" means additional compensation owed to a grocery or drug store 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 or drug store, parent company or any person who is alleged or found to have committed a violation of this chapter.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

For the purposes of this chapter, covered grocery or drug store workers are limited to those who perform work for a hiring entity where the work is performed in the city of Montebello.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

A. For purposes of this chapter, hiring entities are limited to those who employ three hundred or more grocery or drug store workers nationally and employ more than fifteen employees per grocery or drug store in the city of Montebello.

B. To determine the number of grocery or drug store workers employed for the current calendar year:

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

2. All grocery or drug store workers who worked for compensation shall be counted, including but not limited to:

a. Grocery or drug store workers who are not covered by this chapter; and

b. Grocery or drug store workers who worked in Montebello.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

A. Hiring entities shall provide each grocery or drug store worker with premium pay consisting of an additional four dollars per hour for each hour worked.

B. Hiring entities shall provide the pay required by Subsection 5.10.060(A) for a minimum of one hundred eighty days from the effective date of this chapter.

C. Unless extended by city council, this ordinance shall expire in one hundred eighty days.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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

1. Reduce a grocery or drug worker's compensation;

2. Limit a grocery or drug store 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 5.10.070(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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

A. Hiring entities shall retain records that document compliance with this chapter for covered grocery or drug store workers.

B. Hiring entities shall retain the records required by Subsection 5.10.090(A) for a period of two years.

C. If a hiring entity fails to retain adequate records required under Subsection 5.10.090(A), there shall be a presumption, rebuttable by clear and convincing evidence, that the hiring entity violated this chapter for each covered grocery or drug store worker for whom records were not retained.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

No hiring entity employing a grocery or drug store worker shall discharge, reduce in compensation, or otherwise discriminate against any grocery or drug store 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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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. A respondent found to be in violation of this chapter for retaliation under Section 5.10.100 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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

Any covered grocery or drug store worker that suffers financial injury as a result of a violation of this chapter, or is the subject of prohibited retaliation under Section 5.10.100, 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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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 grocery or drug store worker than required by this chapter.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

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 grocery or drug store 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 grocery or drug store worker's right to pursue any other remedies at law or equity for violation of their rights.

(Ord. No. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)

The provisions of this chapter 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 or drug store 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. 2433, § 1, 1-27-2021; Ord. No. 2434, § 1, 2-10-2021)