Oakland Municipal Code Ch. 5.96 Grocery Worker Hazard Pay

This Chapter shall be known as the "Grocery Worker Hazard Pay Emergency Ordinance."

(Ord. No. 13639, § 5, 2-2-2021)

This Chapter is adopted pursuant to the powers vested in the City of Oakland under the laws of the State of California, including, but not limited to, the police powers vested in the City pursuant to Article XI, Section 7 of the California Constitution, California Labor Code section 1205 (b), and the Charter of the City of Oakland.

(Ord. No. 13639, § 5, 2-2-2021)

The definitions set forth in this Section shall govern the construction and meaning of the terms used in this Chapter:

A. "Base Wage" means the hourly wage paid to covered employees as of the effective date of this Chapter less hazard pay owed under this ordinance or any other premium hourly rate already paid to compensate covered employees for working during the pandemic (referred to herein as "employer-initiated hazard pay").

B. "City" means the City of Oakland.

C. "Covered Employee" means any individual who 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, and who works in a large grocery store on either a full-time or part-time basis.

D. "Covered Employer" means any person who (a) directly or indirectly or through an agent or any other person owns or operates a large grocery store and employs or exercises control over the wages, hours or working conditions of any covered employee; and (b) employs five hundred (500) or more employees nationwide regardless of where those employees are employed, or is a franchisee associated with a franchisor or a network of franchises with franchisees that employ more than five hundred (500) employees in the aggregate, regardless of where those employees are employed. To determine the number of employees employed by a large grocery store, the calculation shall be based upon:

a. The actual number of employees who worked for compensation during the two (2) workweeks preceding the effective date of this Chapter; and

b. All employees who worked for compensation shall be counted, including but not limited to:

i. Employees who are not covered by this Chapter;

ii. Employees who worked within the geographic limits of the City;

iii. Employees who worked outside the geographic limits of the City; and

iv. Employees who worked in full-time employment, part-time employment, joint employment, temporary employment, or through the services of a temporary services or staffing agency or similar entity.

E. "Employer-Initiated Hazard Pay" means a premium hourly rate to compensate covered employees for the hardships and/or risks associated with working during the COVID-19 pandemic. If a covered employer pays such employer-initiated hazard pay on a flat rate basis, the premium hourly rate is derived by dividing the flat rate payment for a workweek by the number of hours worked in the workweek.

F. "Franchise" means a written agreement by which:

1. A person is granted the right to engage in the business of offering, selling, or distributing goods or services under a marketing plan prescribed or suggested in substantial part by the grantor or its affiliates; and

2. The operation of the business is substantially associated with a trademark, service mark, tradename, advertising, or other commercial symbol; designating, owned by, or licensed by the grantor or its affiliate; and

3. The person pays, agrees to pay, or is required to pay, directly or indirectly, a franchise fee.

G. "Franchisee" means a person to whom a franchise is offered or granted.

H. "Franchisor" means a person who grants a franchise to another person.

I. "Hazard Pay" means an additional five dollars ($5.00) per hour wage bonus in addition to each covered employee's base wage or holiday premium wage for each hour worked within the City.

J. "Holiday Premium" means the hourly wage paid to covered employees for performing work during a holiday or holiday season.

K. "Hours Worked" means the time during which a covered employee is subject to the control of a covered employer, including all the time the employee is suffered or permitted to work, and on-call.

L. "Large Grocery Store" means a retail or wholesale store that is over fifteen thousand (15,000) square feet in size, that is located within the geographic limits of the City, and that sells primarily household foodstuffs for offsite consumption, including the sale of fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked foods, or prepared foods. Other household supplies or other products shall be secondary to the primary purpose of food sales.

M. "Person" means any 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.

N. "Retaliatory Action" shall have the same meaning as "Retaliation" as defined in Section 5.92.050 of the Oakland Municipal Code.

(Ord. No. 13639, § 5, 2-2-2021)

A. Hazard Pay. Covered employers shall pay covered employees a wage of no less than the premium hourly rate set under the authority of this Chapter. The premium hourly rate for each covered employee shall be an additional five dollars ($5.00) per hour for all hours worked at a large grocery store on top of the covered employee's base wage or holiday premium, whichever applicable at the time of hours worked. The hazard pay rate shall not include compensation already owed to covered employees, holiday premium rates, gratuities, service charge distributions, or other bonuses.

B. Credits. Covered employers providing employer-initiated hazard pay will be credited for doing so in accordance with Section 5.96.050.

C. Duration of Hazard Pay. Covered employers shall pay hazard pay to all covered employees for any pay period during which the City of Oakland is within a widespread (purple), substantial (red) or moderate (orange) risk level, and until such time as risk levels return to minimal (yellow) under state health orders.

(Ord. No. 13639, § 5, 2-2-2021)

A. Employer-initiated hazard pay shall be credited against the five dollars ($5.00) per hour for the hourly amount paid to each covered employee (e.g., a covered employer offering two dollars ($2.00) per hour in employer-initiated hazard pay owes an additional three dollars ($3.00) per hour in hazard pay per this Chapter.) To receive credit for paying a covered employee employer-initiated hazard pay, a covered employer must demonstrate that, as of the effective date of this Chapter and in any subsequent covered workweeks, the covered employer paid such employer-initiated hazard pay to the covered employee. No covered employer shall be credited prospectively for any past payments. No covered employer shall be credited for any hourly premiums already owed to covered employees, such as but not limited to, holiday premiums. Nothing herein shall be interpreted to prohibit any employer from paying more than five dollars ($5.00) per hour in hazard pay.

B. Covered employers must, upon request, immediately provide the following to the department of workplace and employment standards to receive credit for employer-initiated hazard pay:

1. A copy of the employer's hazard pay policy; and

2. A statement, provided under penalty of perjury, explaining covered employees' hourly base wages, hourly holiday premiums, hourly employer-initiated hazard pay, and any other wage bonuses received during the last twelve (12) all months; and

3. For any covered employee(s) as to whom a covered employer seeks credit for employer-initiated hazard pay, documentation reflecting that such payments were made, for each hour claimed; and

4. Documentation that allows the City to review for compliance by assessing wages for the past twelve (12) months and that is itemized in such a way that the City can understand a covered employee's base wage distinguished from holiday premiums and other bonuses or pay increases that are separate and distinct from employer-initiated hazard pay.

a. The following constitutes acceptable evidence of employer-initiated hazard pay described in Subsection (B)(4): A spreadsheet, of all covered employees and their wages for each pay period for the last twelve (12) months, that allows the City to distinguish base wage from holiday pay and other bonuses or pay increases that are separate and distinct from employer-initiated hazard pay.

b. Production of the evidence described in Subsection (B)(4)(a) does not exempt any covered employer from maintaining, and providing access to, the underlying payroll records described in this Section and in Oakland Municipal Code Section 5.92.050(C).

C. Any offer of proof under Subsection shall be accompanied by a written acknowledgment that it was submitted under penalty of perjury.

(Ord. No. 13639, § 5, 2-2-2021)

The provisions of this Chapter may not be waived by agreement between an individual covered employee and a covered employer. All the provisions of this Chapter, or any part thereof, 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. No. 13639, § 5, 2-2-2021)

It shall be unlawful for a covered employer or any other person to interfere with, restrain or deny the existence of, or the attempt to exercise, any rights protected under this Chapter.

A. Employers shall not take retaliatory action or discriminate against any employee or former employee because the individual has exercised rights protected under this Chapter. Such rights include, but are not limited to, the right to request hazard pay pursuant to this Chapter; the right to file a complaint with the City or inform any person about an employer's alleged violation of this Chapter; the right to participate in an investigation, hearing or proceeding or cooperate with or assist the City in its investigations of alleged violations of this Chapter, and the right to inform any person of their rights under this Chapter. Protections of this Chapter shall apply to any employee who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against an employee, including lowering an employee's base wage or holiday premium wages or reducing work hours, within 90 days of the employee's exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights.

(Ord. No. 13639, § 5, 2-2-2021)

The provisions related to enforcement set forth in the Oakland Municipal Code Section 5.92.050 (A), (C), and (E)-(K) shall apply equally to the enforcement of this Chapter and individuals and entities afforded rights and protections under those Sections are hereby granted those same rights and protections in connection with the enforcement of any provision of this Chapter. Covered employers shall have all obligations of "Employers" and "employers" under Section 5.92.050. The terms "Employer," "Employ," and "Employee," when used in Section 5.92.050 for purposes of enforcing provisions of this Chapter, shall have the meanings set forth in Section 5.94.020 of this Chapter. The provisions of this Chapter do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an employee.

(Ord. No. 13639, § 5, 2-2-2021)

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.

(Ord. No. 13639, § 5, 2-2-2021)

Nothing in this article shall be interpreted or applied to create any power or duty in conflict with any federal or state law. The term "Conflict," means a conflict that is preemptive under federal or state law.

(Ord. No. 13639, § 5, 2-2-2021)

A. The City shall, as expeditiously as possible, publish and make available on its website a notice suitable for covered employers to inform employees of their rights under this emergency Chapter. Such notice shall be translated into Spanish, Chinese, and Vietnamese.

B. Every covered employer shall, within three (3) days after the city has published and made available the notice described in Subsection A of this Section, provide the notice to employees in a manner calculated to reach all employees, including, but not limited to, posting in a conspicuous place at the workplace; via electronic communication; or posting in a conspicuous place in a covered employer's web-based or app-based platform. The covered employer's notification shall be provided in all languages spoken by more than ten (10) percent of employees.

C. Every covered employer shall, within three (3) days after the City has published and made available the notice described in Subsection A of this Section or at the time of hire, whichever is later, provide each covered employee the covered employer and owner or manager's name; address; telephone number; and whether it is part of a franchise associated with a franchisor or network of franchises. If the information the covered employer provided to the covered employee changes, the covered employer shall provide the updated information in writing within ten (10) days of the change.

D. Every covered employer shall provide notice to employees when the risk level in the City either moves from widespread (purple), substantial (red) or moderate (orange) to minimal (yellow), or from minimal (yellow) to widespread (purple), substantial (red) or moderate (orange) under a State of California Health Order. Notice shall be given in a manner calculated to reach all employees, including, but not limited to, posting in a conspicuous place at the workplace; via electronic communication; or posting in a conspicuous place in a covered employer's web-based or app-based platform. The covered employer's notification shall be provided in all languages spoken by more than ten (10) percent of employees.

(Ord. No. 13639, § 5, 2-2-2021)

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.

(Ord. No. 13639, § 5, 2-2-2021)

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, which shall remain in full force and effect. The City Council hereby declares that it would have passed this Chapter and each and every subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional, without regard to whether any portion of the article would be subsequently declared invalid or unconstitutional. The courts are hereby authorized to reform the provisions of this Chapter in order to preserve the maximum permissible effect of each subsection herein.

(Ord. No. 13639, § 5, 2-2-2021)