Chapter 5.92 — CITY MINIMUM WAGE, SICK LEAVE, AND OTHER EMPLOYMENT STANDARDS

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

"City" shall mean the City of Oakland.

"Employee" shall mean any person who:

a.

In a particular week performs at least two (2) hours of work within the geographic boundaries of the City for an Employer; and

b.

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.

"Employer" shall mean any Person 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.

"Paid Sick Leave" shall mean paid "sick leave" as defined in California Labor Code § 233(b)(4), except that the definition here extends beyond the Employee's own illness, injury, medical condition, need for medical diagnosis or treatment, or medical reason, to also encompass time taken off work by an Employee for the purpose of providing care or assistance to other persons specified below with an illness, injury, medical condition, or need for medical diagnosis or treatment.

"Minimum Wage" shall have the meaning set forth in Section 5.92.020 of this Chapter.

"Person" means an individual corporation, 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.

"Small Business" shall mean an Employer for which normally fewer than ten (10) persons work for compensation during a given week, including persons employed outside the City. The City Council is authorized to adopt regulations further defining "small business" for businesses with fluctuating numbers of employees. In determining the number of persons performing work for an employer during a given week, all persons performing work for the same business enterprise for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity.

(Res. No. 85300, 12-9-2014)

A.

Employers shall pay Employees no less than the Minimum Wage for each hour worked within the geographic boundaries of the City.

B.

Beginning on the 2nd of March, 2015, the Minimum Wage shall be an hourly rate of $12.25. To prevent inflation from eroding its value, beginning on the 1st of January 2016, and then each year thereafter on the 1st of January, the Minimum Wage shall increase by an amount corresponding to the prior calendar year's increase, if any, in the Consumer Price Index for urban wage earners and clerical workers for the San Francisco-Oakland-San Jose, CA metropolitan statistical area (or if such index is discontinued, then in the most similar successor index).

(Res. No. 85300, 12-9-2014)

A.

Accrual of Paid Sick Leave.

Paid Sick Leave shall begin to accrue as of the 2nd of March, 2015. For Employees hired by an Employer after March 2, 2015, the Employee shall not be entitled to use Paid Sick Leave until after 90 calendar days of employment with the Employer.

For every 30 hours worked after Paid Sick Leave begins to accrue for an Employee, the Employee shall accrue one (1) hour of Paid Sick Leave. Such leave shall accrue only in hour-unit increments; there shall be

no accrual of a fraction of an hour of such leave.

For Employees of Small Businesses, there shall be a cap of forty (40) hours of accrued Paid Sick Leave. For Employees of other Employers, there shall be a cap of seventy-two (72) hours of accrued Paid Sick Leave. Accrued Paid Sick Leave for Employees carries over from year to year (whether calendar year or fiscal year), but is limited to the aforementioned cap. Nothing herein precludes an Employer from establishing a higher cap or no cap on the number of accrued hours.

If an Employer has a paid leave policy, such as a paid time off policy, that makes available to Employees an amount of paid leave that may be used for the same purposes as Paid Sick Leave under this Chapter and that is sufficient to meet the requirements for accrued Paid Sick Leave as stated in subsections (a)-(c), the Employer is not required to provide additional Paid Sick Leave.

An Employer is not required to provide financial or other reimbursement to an Employee upon the Employee's termination, resignation, retirement, or other separation from employment, for accrued Paid Sick Leave that the Employee has not used.

B.

Use of Paid Sick Leave.

An Employee may use Paid Sick Leave not only when he or she is ill or injured or for the purpose of the Employee's receiving medical care, treatment, or diagnosis, as specified more fully in California Labor Code § 233(b)(4), but also to aid or care for the following persons when they are ill or injured or receiving medical care, treatment, or diagnosis: Child; parent; legal guardian or ward; sibling; grandparent; grandchild; and spouse, registered domestic partner under any state or local law, or designated person. The Employee may use all or any percentage of his or her Paid Sick Leave to aid or care for the aforementioned persons. The aforementioned child, parent, sibling, grandparent, and grandchild relationships include not only biological relationships but also relationships resulting from adoption; step-relationships; and foster care relationships. "Child" includes a child of a domestic partner and a child of a person standing in loco parentis. If the Employee has no spouse or registered domestic partner, the Employee may designate one (1) person as to whom the Employee may use paid sick leave to aid or care for that person in lieu of a spouse or registered domestic partner. The opportunity to make such a designation shall be extended to the Employee no later than the date on which the Employee has worked thirty (30) hours after Paid Sick Leave begins to accrue pursuant to this Chapter. There shall be a window of ten (10) work days for the Employee to make this designation. Thereafter, the opportunity to make such a designation, including the opportunity to change such a designation previously made, shall be extended to the Employee on an annual basis, with a window of ten (10) work days for the Employee to make the designation.

An Employer may not require, as a condition of an Employee's taking Paid Sick Leave, that the Employee search for or find a replacement worker to cover the hours during which the Employee is on Paid Sick Leave.

An Employer may require Employees to give reasonable notification of an absence from work for which Paid Sick Leave is or will be used.

An Employer may only take reasonable measures to verify or document that an Employee's use of Paid Sick Leave is lawful, and shall not require an Employee to incur expenses in excess of five ($5.00) dollars in order to show his or her eligibility for such paid leave.

(Res. No. 85300, 12-9-2014)

A.

Definitions for this section:

"Service Charge" means all separately-designated amounts collected by a Hospitality Employer from customers that are for service by Hospitality Workers, or are described in such a way that customers might reasonably believe that the amounts are for those services, including but not limited to those charges designated on receipts under the term "service charge," "delivery charge," or "porterage charge."

"Hospitality Employer" means a Person who owns, controls, or operates any part of a hotel or restaurant or banquet facilities within the City, including as a subcontractor thereto, but does not include any governmental agency.

"Hospitality Worker" means any individual who works for a Hospitality Employer and who performs a service for which a Hospitality Employer imposes a Service Charge. "Hospitality Worker" does not include a managerial employee.

B.

Hospitality employers' responsibilities.

Service Charges shall not be retained by the Hospitality Employer but shall be paid over in their entirety to the Hospitality Worker(s) performing services for the customers from whom Service Charges are to be

collected. No part of these charges may be paid to supervisors except for any portion of their work time spent on nonsupervisory work serving these customers, and then at no higher rate of compensation than the average of what is paid other Hospitality Workers performing similar customer service. The Service Charges shall be distributed to the Hospitality Workers not later than the next payroll following the work or collection of the charge from the customer, whichever is later. Without limitation of the foregoing:

a.

Service charges collected for banquets or catered meetings shall be paid to the Hospitality Workers who actually work the banquet or catered meeting;

b.

Service charges collected for room service shall be paid to the Hospitality Workers who actually deliver food and beverage associated with the charge; and

c.

Service charges collected for porterage service shall be paid to the Hospitality Workers who actually carry the baggage associated with the charge.

This section does not apply to any tip, gratuity, money, or part of any tip, gratuity, or money that has been paid or given to or left for a Hospitality Worker by customers over and above the actual amount due for services rendered or for goods, food, drink, or articles sold or served to the customer.

(Res. No. 85300, 12-9-2014)

A.

Retaliation.

A Person shall not discharge, reduce the compensation of nor otherwise discriminate against any Person 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. Within one hundred twenty (120) days of an Employer being notified of such activity, it shall be unlawful for the Employer to discharge any Employee who engaged in such activity unless the Employer has clear and convincing evidence of just cause for such discharge.

No Employer may fund increases in compensation required by this Chapter, nor otherwise respond to the requirements of this Chapter, by reducing the compensation of any non-management Employees nor by reducing the pension, vacation, or other non-wage benefits of any such Employees, nor by increasing charges to them for parking, meals, uniforms or other items. If an Employer makes such adverse changes

after the filing of the notice to circulate the petition giving rise to this Chapter but before this Chapter has become effective, then upon this Chapter's effective date, such Employer shall restore the conditions of the status quo ante.

B.

Waiver. Any waiver by an individual Employee of any of the provisions of this Chapter shall be deemed contrary to public policy and shall be void and unenforceable, except that Employees shall not be barred from entering into a written valid collective bargaining agreement waiving a provision of this Chapter if such waiver is set forth in clear and unambiguous terms. Any request to an individual Employee by an Employer to waive his or her rights under this Chapter shall constitute a violation of this Chapter.

C.

Retention of Records. Each employer shall maintain for at least three (3) years for each employee a record of his or her name, hours worked, pay rate, paid sick leave accrual and usage, and service charge collection and distribution. Each employer shall provide each employee or his or her representative a copy of the records relating to such employee upon the employee's or representative's reasonable request, except that the employees' names (and any addresses and social security numbers) shall be redacted unless the requester is an employee requesting his or her own records. Where an employer does not maintain or retain adequate records documenting wages paid or does not allow reasonable access to such records, it shall be presumed in any administrative or judicial enforcement proceeding to enforce the provisions of this Chapter that the employer paid the employee no more than the applicable federal or state minimum wage, absent clear and convincing evidence otherwise.

D.

Notice to Employees. Each Employer shall give written notification to each current Employee and to each new Employee at time of hire, of his or her rights under this Chapter. The notification shall be in all languages spoken by a more than 10% of the Employees, and shall also be posted prominently in areas at the work site where it will be seen by all Employees. The City Administrator is authorized to prepare sample notices and Employer use of such notices shall constitute compliance with this subsection.

E.

City Access. Each Employer shall permit access to work sites and relevant records for authorized City representatives for the purpose of monitoring compliance with this Chapter and investigating employee complaints of noncompliance, including production for inspection and copying of its employment records, but without allowing social security numbers to become a matter of public record.

F.

City Authorized to Consider Compliance. City officials are hereby authorized to consider, to the maximum extent permitted by law, an Employer's record of noncompliance with this Chapter in making City decisions on City contracts and land use approvals and other entitlements to expand or operate within the City. The City is authorized to either deny approval or include conditions for approval ensuring future compliance by investigating complaints of noncompliance with this Chapter and rendering City decisions on the merits of such complaints. The City is authorized to award the same relief in its proceedings as a court may award.

Pursuit of such administrative remedy shall not be a prerequisite for pursuing a private action under this Chapter.

G.

Enforcement Procedures.

Enforcement Priority. It is the policy of the City of Oakland that all employees be compensated fairly according to the law and that employers who engage in wage theft be held accountable.

Administrative Enforcement.

a.

The City is authorized to take appropriate steps to enforce this Chapter. The City may investigate any possible violations of this Chapter by an employer or other person and, where the City has reason to believe that a violation has occurred, it may order appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing.

b.

Where the City, after a hearing that affords a suspected violator due process, determines that a violation has occurred, it may order any appropriate relief, including, but not limited to, reinstatement, the payment of any back wages unlawfully withheld, and the payment of an additional sum as an administrative 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. A violation for unlawfully withholding wages or service charges shall be deemed to continue from the date immediately following the date that the sums 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 sums are paid in full. Where prompt compliance is not forthcoming, the City may take any appropriate action to secure compliance, including initiating a civil action pursuant to Section 5.92.050(G)(3), and, except where prohibited by state or federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits, or licenses held or requested by the employer or person until such time as the violation is remedied. All City agencies and departments shall cooperate with such revocation or suspension requests. In order to compensate the City for the costs of investigating and remedying the violation, the City may also order the violating employer or person to pay to the City a sum of not more than fifty dollars ($50.00) for each day and for each employee or person as to whom the violation occurred or continued. Such funds shall be allocated to the City and shall be used to offset the costs of implementing and enforcing this Chapter and, on and after July 1, 2020, other laws under the jurisdiction of the Department of Workplace and Employment Standards. The amounts of all sums and payments authorized or required under this Section shall be updated annually for inflation, beginning January 1, 2019, using the inflation rate and procedures set forth in Section 5.92.020(B).

c.

An employee, representative of employees, or other person may report in writing any suspected violation of this Chapter to the City. The City shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the person reporting the violation and any employee whose name is included in the report. Provided, however, that with the written authorization of such person, the City may disclose his or her name and identifying information as necessary to enforce this Chapter or for any other appropriate purpose. In order to further encourage reporting by employees, if the City notifies an employer that the City is investigating a complaint, the City shall require the employer to post or otherwise inform its employees that the City is conducting an investigation, using a form provided by the City.

Civil Enforcement. The City, the City Attorney, 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 entitled to all remedies available to remedy any violation of this Chapter, including but not limited to back pay, reinstatement and/or injunctive relief, and the payment of an additional sum as 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, up to a maximum of one thousand dollars ($1,000.00) per employee or aggrieved person. Violations of this Chapter are declared to irreparably harm the public and covered employees generally. The court shall award reasonable attorney's fees, witness fees and expenses to any plaintiff who prevails in an action to enforce this Chapter. Provided that any person or entity enforcing this Chapter on behalf of the public shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief, and reasonable attorneys' fees and costs. No criminal penalties shall attach for any violation of this Chapter, nor shall this Chapter give rise to any cause of action for damages against the City.

H.

Interest. In any administrative or civil action brought for the non-payment of wages or service charge distributions under this Chapter, the City or court, as the case may be, shall award interest on all due and unpaid sums at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date the sums 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 sums are paid in full.

I.

No Preemption of Higher Standards. 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 or Port of Oakland. This Chapter shall not be construed to limit a discharged employee's right to bring a common law cause of action for wrongful termination.

J.

Severability. If any provision or application of this Chapter is declared illegal, invalid or inoperative, in whole or in part, by any court of competent jurisdiction, the remaining provisions and portions thereof and applications not declared illegal, invalid or inoperative shall remain in full force or effect. The courts are hereby authorized to reform the provisions of this Chapter in order to preserve the maximum permissible effect of each subsection herein. Nothing herein may be construed to impair any contractual obligations of the Port or City of Oakland. This Chapter shall not be applied to the extent it will cause the loss of any federal or state funding of City or Port activities.

K.

Department of Workplace and Employment Standards. On and after July 1, 2020, the Department of Workplace and Employment Standards shall enforce this Chapter, and shall have authority to take any action permitted of the City in this Section.

L.

Regulations. The City and, on and after July 1, 2020, the Department of Workplace and Employment Standards, may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this Chapter. Such rules and regulations, determinations and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this Chapter.

(Res. No. 87287, § 4, 7-24-2018; Res. No. 85300, 12-9-2014)