Chapter 2.28 — LIVING WAGE ORDINANCE

This chapter shall be known as the "Oakland living wage ordinance." The purpose of this chapter is to require that nothing less than a prescribed minimum level of compensation (a living wage) be paid to employees of service contractors of the city and employees of CFARs.

(Ord. 12050 § 1, 1998)

The following definitions shall apply throughout this chapter:

"Agency" means that subordinate or component entity or person of the city (such as a department, office, or agency) that is responsible for solicitation of proposals or bids and responsible for the administration of service contracts or financial assistance agreements.

"City" means the city of Oakland and all city agencies, departments and offices.

"City financial assistance recipient" (CFAR) means any person who receives from the city financial assistance as contrasted with generalized financial assistance such as through tax legislation, in an amount of one hundred thousand dollars ($100,000.00) or more in a twelve (12) month period.

Categories of such assistance include, but are not limited to, grants, rent subsidies, bond financing, financial planning, tax increment financing, land writedowns, and tax credits. City staff assistance shall not be regarded as financial assistance for purposes of this article. The forgiveness of a loan shall be regarded as financial assistance, and a loan provided at below market interest rate shall be regarded as financial assistance to the extent of any differential between the amount of the loan and the present value of the payments thereunder, discounted over the life of the loan by the applicable federal rate as used in 26 U.S.C. Sections 1274(d), 7872(f).

A tenant or leaseholder of a CFAR who occupies property or uses equipment or property that is improved or developed as a result of the assistance awarded to the CFAR and who will employ at least twenty (20) employees for each working day in each of twenty (20) or more calendar weeks in the twelve (12) months after occupying or using such property, shall be considered a "city financial assistance recipient" for the purposes of this chapter and shall be covered for the same period as the CFAR of which they are a tenant or leaseholder.

"Contractor" means any person that enters into a service contract with the city in an amount equal to or greater than twenty-five thousand dollars ($25,000.00).

"Employee" means any person who is employed (1) as a service employee of a contractor or subcontractor under the authority of one or more service contracts and who expends any of his or her time thereon, including but not limited to: hotel employees, restaurant, food service or banquet employees; janitorial employees; security guards; parking attendants; health care employees; gardeners; waste management employees; and clerical employees; or (2) by a CFAR and who expends at least half of his or her time on the funded project/program or property which is the subject of city financial assistance, or (3) by a service contractor of a CFAR and who expends at least half of his or her time on the premises of the CFAR and is directly involved with the funded project/program or property which is the subject of city financial assistance. Any person who is a managerial, supervisory or confidential employee is not an employee for purposes of this definition.

the subject of city financial assistance, or (3) by a service contractor of a CFAR and who expends at least half of his or her time on the premises of the CFAR and is directly involved with the funded project/program or property which is the subject of city financial assistance. Any person who is a managerial, supervisory or confidential employee is not an employee for purposes of this definition.

"Employer" means any person who is a city financial assistance recipient, contractor, or subcontractor.

"Person" means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts.

"Service contract" means (1) a contract let to a contractor by the city for the furnishing of services, to or for the city, except contracts where services are incidental to the delivery of products, equipment or commodities, and that involves an expenditure equal to or greater than twenty-five thousand dollars ($25,000.00), or (2) a lease or license under which services contracts are let by the lessee or licensee. A contract for the purchase or lease of goods, products, equipment, supplies or other property is not a "service contract" for the purposes of this definition.

"Subcontractor" means any person who enters into a contract with (1) a contractor to assist the contractor in performing a service contract or (2) a CFAR to assist the recipient in performing the work for which the assistance is being given or to perform services on the property which is the subject of city financial assistance. Service contractors of CFARs shall not be regarded as subcontractors except to the extent provided by the definition of "employee" in this section.

"Trainee" means a person enrolled in a job training program which meets the city job training standards.

(Ord. 12050 § 2, 1998)

A.

Wages. Employers shall pay employees a wage to each employee of no less than the hourly rates set under the authority of this chapter. The initial rate shall be eight dollars ($8.00) per hour worked with health benefits, as described in this chapter, or otherwise nine dollars and twenty-five cents ($9.25) per hour. Such rate shall be upwardly adjusted annually, no later than April 1st in proportion to the increase immediately preceding December 31st over the year earlier level of the Bay Region Consumer Price Index as published by the Bureau of Labor Statistics, U.S. Department of Labor, applied to nine dollars and twenty-five cents ($9.25). The city shall publish a bulletin by April 1st of each year announcing the adjusted rates, which shall take effect upon such publication. Such bulletin will be distributed to all city agencies, departments and offices, city contractors and CFARs upon publication. The contractor shall provide written notification of the rate adjustments to each of its employees and to its subcontractors, who shall provide written notices to each of their employees, if any, and make the necessary payroll adjustments by July 1st.

B.

Compensated Days Off. Employers shall provide at least twelve (12) days off per year for sick leave, vacation, or personal necessity at the employee's request. Employees shall accrue one compensated day off per month of full-time employment. Part-time employees shall accrue compensated days off in increments proportional to that accrued by full-time employees. The employees shall be eligible to use accrued days off after the first six months of employment or consistent with company policy, whichever is sooner. Paid holidays, consistent with established employer policy, may be counted toward provision of the required twelve (12) compensated days off.

Employers shall also permit employees to take at least an additional ten days a year of uncompensated time to be used for sick leave for the illness of the employee or a member of his or her immediate family where the employee has exhausted his or her compensated days off for that year. This chapter does not mandate the accrual from year to year of uncompensated days off.

C.

Health Benefits. Health benefits required by this chapter shall consist of the payment of at least one dollar and twenty five-cents ($1.25) per hour towards the provision of health care benefits for employees and their dependents. Proof of the provision of such benefits must be submitted to the agency not later than thirty (30) days after execution of the contract to qualify for the wage rate in subsection (A) of this section for employees with health benefits.

(Ord. 12050 § 3, 1998)

A.

For CFARs, assistance given in an amount equal to or greater than one hundred thousand dollars ($100,000.00) in any twelve (12) month period shall require compliance with this chapter for the life of the contract in the case of assistance given to fund a program or five years in the case of assistance given to purchase real property, tangible property or construct facilities, including but not limited to materials, equipment, fixtures, merchandise, machinery or the like.

B.

A service contractor and subcontractor shall be required to comply with this chapter for the term of the contract.

(Ord. 12050 § 4, 1998)

Employers shall inform employees making less than twelve dollars ($12.00) per hour of their possible right to the federal Earned Income Credit ("EIC") under Section 32 of the Internal Revenue Code of 1954, 26 U.S.C. Section 32, and shall make available to employees forms informing them about the EIC and forms required to secure advance EIC payments from the employer. These forms shall be provided to the eligible employees in English, Spanish and other languages spoken by a significant number of the employees within thirty (30) days of employment under the terms of this chapter and as required by the Internal Revenue Code.

(Ord. 12050 § 5, 1998)

A.

The City Manager shall promulgate rules and regulations for the preparation of bid specifications, contracts and preparation for contract negotiations.

B.

The City Manager shall submit periodic reports to the City Council which shall include the following information at minimum:

A listing and the status of all RFPs and RFQs, service contracts and lease agreements executed and financial assistance awarded, to which this chapter applies including the term, dollar amount and the service performed or assistance provided;

A description of every instance where an exemption or waiver was granted by action of the City Council.

C.

The City Manager shall develop an administrative procedure and appeal process for determining compliance with this chapter.

Regarding the appeal process, it shall be available to every bidder/proposer who has been deemed noncompliant with this chapter, or who disputes the determination of applicability of this chapter to its business operation which will be involved in the proposed contract. A contract shall not be executed until there is resolution of the relevant appeal.

Appeals shall be filed with the City Manager within seven calendar days of the date of the notice of the city's written determination of noncompliance and reasons therefor, or written determination of the applicability of this chapter.

The City Manager shall maintain records pertaining to all complaints, hearings, determinations and findings, and shall submit a regular report on compliance with this chapter no less than annually to the City Council. Special reports and recommendations on significant issues of interest to the Council will be submitted as deemed appropriate.

(Ord. 12050 § 6, 1998)

Contractors, subcontractors and CFARs who fail to submit documents, declarations or information required to demonstrate compliance with this chapter shall be deemed nonresponsive and subject to disqualification.

(Ord. 12050 § 7, 1998)

A.

A CFAR who contends it is unable to pay all or part of the living wage must provide a detailed explanation in writing to the City Manager who may recommend a waiver to the City Council. The explanation must set forth the reasons for its inability to comply with the provisions of this chapter, including a complete cost accounting for the proposed work to be performed with the financial assistance sought, including wages and benefits to be paid all employees, as well as an itemization of the wage and benefits paid to the five highest paid individuals employed by the CFAR. The CFAR must also demonstrate that the waiver will further the interests of the city in creating training positions which will enable employees to advance into permanent living wage jobs or better and will not be used to replace or displace existing positions or employees or to lower the wages of current employees.

B.

The City Council will grant a waiver only upon a finding and determination that the CFAR has demonstrated economic hardship and that waiver will further the interests of the city in providing training positions which will enable employees to advance into permanent living wage jobs or better. However, no waiver will be granted if the effect of the waiver is to replace or displace existing positions or employees or to lower the wages of current employees.

C.

Waivers from the chapter are disfavored, and will be granted only where the balance of competing interests weighs clearly in favor of granting the waiver. If waivers are to be granted, partial waivers are favored over blanket waivers. Moreover, any waiver shall be granted for no more than one year. At the end of the year the CFAR may reapply for a new waiver which may be granted subject to the same criteria for granting the initial waiver.

D.

The City Council reserves the right to waive the requirements of this chapter upon a finding and determination of the City Council that waiver is in the best interests of the city, e.g. when the city has declared an emergency due to natural disasters and needs immediate services.

(Ord. 12050 § 8, 1998)

A.

A recipient shall be exempted from application of this article if (1) it employs fewer than five employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, or (2) it obtains a waiver as provided herein.

B.

An employee who is a trainee in a job training program which meets the city job training standards shall be exempt for the period of training as specified under the city-approved training standards.

C.

An employee who is under twenty-one (21) years of age, employed by a nonprofit corporation for after school or summer employment or as a trainee for a period not longer than ninety (90) days, shall be exempt.

(Ord. 12050 § 9, 1998)

All RFPs, city contracts and financial assistance agreements subject to this chapter shall contain the following two paragraphs or substantially equivalent language:

 A. This contract is subject to the Living Wage Ordinance, of the Oakland Municipal Code. The Ordinance requires that, unless specific exemptions apply or a waiver is granted, all employers (as defined) under service contracts and recipients of City financial assistance, (as defined) shall provide payment of a minimum wage to employees (as defined) of $8.00 per hour with health benefits of at least $1.25 per hour or otherwise $9.25 per hour. Such rate shall be adjusted annually pursuant to the terms of the Oakland Living Wage Ordinance, of the Oakland Municipal Code.

 B. Under the provisions of the Living Wage Ordinance, the City shall have the authority, under appropriate circumstances, to terminate this contract and to seek other remedies as set forth therein, for violations of the Ordinance.

(Ord. 12050 § 10, 1998)

A.

All proposed contractors and CFARs subject to the provisions of this chapter shall submit a completed declaration of compliance form, signed by an authorized representative, along with each proposal. The completed declaration of compliance form shall be made a part of the executed contract.

B.

Contractors and CFARs shall require their subcontractors and tenants/leaseholders to comply with the provisions of this chapter. Language indicating the subcontractor's or tenants/leaseholders agreement to comply shall be included in the contract between the contractor and subcontractor or any agreement between a CFAR and tenants/lease-holders. A copy of such subcontracts or other such agreements shall be submitted to the city.

C.

Contractors, subcontractors and CFARs shall maintain a listing of the name, address, date of hire, occupation classification, rate of pay and benefits paid for each of its employees, if any, and submit a copy

of the list to the city by March 31st, June 30th, September 30th, and December 31st of each year the contract is in effect. Failure to provide this list within five days of the due date will result in a penalty of five hundred dollars ($500.00) per day. Contractors, subcontractors and CFARs shall maintain payrolls for all employees and basic records relating thereto and shall preserve them for a period of three years after termination of their contracts.

D.

Contractors, subcontractors and CFARs shall give written notification to each current and new employee, at time of hire, of his or her rights to receive the benefits under the provisions of this chapter. The notification shall be provided in English, Spanish and other languages spoken by a significant number of the employees, and shall be posted prominently in communal areas at the work site. A copy of such notification shall be forwarded to the city which must include the following:

Minimum Compensation. The initial rates of eight dollars ($8.00) with health benefits or nine dollars and twenty-five cents ($9.25) without health benefits will be adjusted annually to correspond to adjustments, if any. The living wage shall be upwardly adjusted each year no later than April 1st in proportion to the increase at the immediately preceding December 31st over the year earlier level of the Bay Region Consumer Price Index as published by the Bureau of Labor Statistics, U.S. Department of Labor, applied to nine dollars and twenty-five cents ($9.25).

Health Benefits. Proof of the provision of such benefits shall be submitted to the city not later than thirty (30) days after execution of the contract to qualify for the wage rate in Section 2.28.030. Health benefits shall be provided to part-time employees as well as full-time employees.

Twelve compensated days off per year for sick leave, vacation or personal necessity at the employee's request, and ten uncompensated days off per year for sick leave which shall be made available to all covered employees as provided in this chapter. Employees shall accrue one compensated day off per month of full time employment. Part-time employees shall accrue compensated days off in increments proportional to that accrued by full-time employees. The employees shall be eligible to use accrued days off after the first six months of employment or consistent with company policy, whichever is sooner. Paid holidays, consistent with established employer policy, may be counted toward provision of the required twelve (12) compensated days off. Ten uncompensated days off shall be made available, as needed, for personal or immediate family illness after the employee has exhausted his or her accrued compensated days off for that year. This chapter does not mandate the accrual from year to year of uncompensated days off.

Federal Earned Income Credit (EIC). Forms to inform employees earning less than twelve dollars ($12.00) per hour of their possible right to EIC and forms to secure advance EIC payments from the employer shall

be provided to the eligible employees in English, Spanish and other languages spoken by a significant number of the employees within thirty (30) days of employment under the subject agreement.

Notice that the employers are required to file a declaration of compliance form as part of the contract with the city and that the city will make such declarations available for public inspection and copying during its regular business hours.

E.

Contractors, CFARs and subcontractors shall permit access to work sites and relevant payroll records for authorized city representatives for the purpose of monitoring compliance with this chapter, investigating employee complaints of noncompliance and evaluating the operation and effects of this chapter, including the production for inspection and copying of its payroll records for any or all of its employees for the term of the contract or for five years whichever period of compliance is applicable.

(Ord. 12050 § 11, 1998)

Contractors, subcontractors and CFARs shall not discharge, reduce the compensation of or otherwise discriminate against any employee for making a complaint to the city, participating in any of its proceedings, using any civil remedies to enforce his or her rights, or otherwise asserting his or her rights under this chapter. Contractors, subcontractors and CFARs shall also be in compliance with federal law proscribing retaliation for union organizing.

(Ord. 12050 § 12, 1998)

The provisions of this chapter will augment the city's normal and customary procedure for administering its contracts. The city shall administer the requirements of this chapter as follows:

A.

The City Manager shall develop rules and regulations to review contract documents to insure that relevant language and information are included in city RFP's, agreements and other relevant documents.

B.

The City Manager shall develop rules and regulations for the monitoring of the operations of the contractors, subcontractors and financial assistance recipients to insure compliance including the review, investigation and resolution of specific concerns or complaints about the employment practices of a contractor, subcontractor or CFAR relative to this chapter. In such cases, the city will attempt to resolve the problem within thirty (30) days.

C.

Where a violation of any provision of this chapter has been determined, the contractor will be given a written notice by the city per the rules and regulations promulgated by the City Manager. Should the violation continue and/or no resolution is imminent, the city shall pursue all available legal remedies, including but not limited to any or all of the following penalties and relief:

Suspension and/or termination of the contract, subcontract or financial assistance agreement for cause;

Payback of any or all of the contract or financial assistance awarded by the city;

Deem the contractor or CFAR ineligible for future city contracts and/or financial assistance until all penalties and restitution have been paid in full;

A fine payable to the city in the sum of five hundred dollars ($500.00) for each week for each employee found not to have been paid in accordance with this chapter;

Wage restitution for each affected employee.

E.

The City Attorney shall promulgate procedures for legal enforcement of the requirements of this chapter.

(Ord. 12050 § 13, 1998)

An employee who alleges violation of any provision of this chapter may report such acts to the city and, at the employee's discretion, exhaust available employer internal remedies. The complaint to the city shall be handled as follows:

A.

The employee shall submit to the city a completed complaint form and copies of all documents supporting the allegation. The city shall provide the complaint forms in English and Spanish.

B.

The city shall notify the agency and the employer of the complaint and seek resolution within five days from receipt of the complaint form. If resolution is not accomplished, the city shall initiate an investigation and seek legal remedies, if appropriate.

C.

An employee claiming retaliation (such as, termination, reduction in wages or benefits or adverse changes in working conditions) for alleging noncompliance with this chapter may report the alleged retaliation in the same manner as the initial complaint.

D.

The complainant's or witness' identity will not be divulged to the employer without the individual employee's written consent.

(Ord. 12050 § 14, 1998)

A.

An employee claiming violation of this article may bring an action in the Municipal Court or Superior Court of the State of California, as appropriate, against an employer and may be awarded:

For failure to pay the living wage, back pay for each day during which the violation continued;

For any violation of this chapter, including retaliation for exercising rights provided hereunder, the Court may award any appropriate remedy at law or equity, including but not limited to reinstatement, compensatory damages and punitive damages.

B.

The Court shall award reasonable attorney's fees and costs to an employee who prevails in any such enforcement action.

C.

Notwithstanding any provision of this code or any other ordinance to the contrary, no criminal penalties shall attach for any violation of this article.

D.

No remedy set forth in this chapter is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce any rights hereunder in a court of law. This chapter shall not be construed to limit an employee's right to bring a common law cause of action for wrongful termination.

(Ord. 12050 § 15, 1998)

All of the provisions of this chapter, or any part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms.

(Ord. 12050 § 16, 1998)

This chapter shall apply to the expenditure whether through aid to financial assistance recipients, service contracts let by its financial assistance recipients of funds entirely within the city's control and to other funds, such as federal or state grant funds, where the application of this chapter is consonant with the laws authorizing the city to expend such other funds.

(Ord. 12050 § 17, 1998)

The provisions of this chapter shall apply to (a) a contract entered into and financial assistance provided after the effective date of the ordinance codified in this chapter; (b) a contract amendment consummated after the effective date of the ordinance codified in this chapter which itself meets the financial threshold requirement of this chapter and (c) supplemental financial assistance provided for after the effective date of this chapter which itself meets the requirements of this chapter.

(Ord. 12050 § 18, 1998)

All implementing rules, regulations, and procedures promulgated by the City Manager or his designee shall be presented to the City Council for approval within sixty (60) days of adoption of the ordinance codified in this chapter.

(Ord. 12050 § 19, 1998)