Pomona Municipal Code § 30-802 Definitions

As a result of the COVID-19 pandemic, this article aims to protect and promote the public health, safety, and welfare during the new coronavirus 19 (COVID-19) emergency by requiring retail establishments to provide premium pay for designated retail employees performing work in Pomona. Requiring retail establishments to provide premium pay to designated retail employees and compensates designated retail employees for the risks of working during a pandemic. Designated retail employees 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. 4300, § 2, 3-1-2021)

This article shall constitute the "Premium Pay for Designated Retail Employees Ordinance" and may be cited as such.

(Ord. No. 4300, § 2, 3-1-2021)

For purposes of this article:

Adverse action means reducing the compensation to a designated retail employee, garnishing gratuities, temporarily or permanently denying or limiting access to work, incentives, or bonuses, offering less desirable work, demoting, terminating, deactivating, putting a covered retail employees on hold status, failing to rehire after a seasonal interruption of work, threatening, penalizing, retaliating, or otherwise discriminating against a designated retail employee for any reason prohibited by sections 30-806 and 30-809. "Adverse action" also encompasses any action by the retail establishment or a person acting on the retail establishment's behalf that would dissuade a covered retail employee from exercising any right afforded by this article.

Aggrieved party means a designated covered retail employee or other person who suffers tangible or intangible harm due to a retail establishment or other person's violation of this article.

City means the City of Pomona.

Covered retail employee means a retail employee employed directly by a retail establishment who is entitled to premium pay pursuant to this article.

Premium pay means additional compensation owed to a designated retail employee that is separate from retail establishment payments for providing services, bonuses, and commissions, as well as tips earned from customers.

Respondent means a retail establishment, parent company or any person who is alleged or found to have committed a violation of this article.

Retail establishment means a retail establishment located in the City of Pomona that:

(a) Are more than 15,000 square feet and:

(1) Devotes 70 percent or more of its sales floor area to retailing a general range of food products, which may be fresh or packaged; or

(2) Receives 70 percent or more revenue from retailing a general range of food products;

(b) Greater than 50,000 square feet of gross buildable area that will generate sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law (Part 1.5 (commencing with section 7200) of Division 2 of the Revenue and Taxation Code);

(c) Is more than 50,000 square feet and devotes ten percent or more of its sales floor area to the sale of merchandise that is non-taxable pursuant to section 6359 of the Revenue and Taxation Code, including retail establishments with multiple tenants, so long as consumer goods and non-taxable items are sold under the same roof with shared checkout stands, entrances, and exits; or

(d) Is retail pharmacy that sells a variety of prescription and nonprescription medicines, as well as any combination of miscellaneous items, including, but not limited to, sundries, dry foods, packaged foods, beverages, fresh produce, meats, deli products, dairy products, canned foods, or prepared foods.

(Ord. No. 4300, § 2, 3-1-2021)

For the purposes of this article, designated retail employee are limited to those who perform work for a retail establishment where the work is performed in the City of Pomona.

(Ord. No. 4300, § 2, 3-1-2021)

(a) For purposes of this article, retail establishments are limited to those who employ 300 or more designated retail employees nationally and employ more than ten employees per retail establishment in the City of Pomona.

(b) To determine the number of designated retail employee employed for the current calendar year:

(1) The calculation is based upon the average number per calendar week of designated retail employee who worked for compensation during the preceding calendar year for any and all weeks during which at least one designated retail employee worked for compensation. For hiring entities that did not have any designated retail employees during the preceding calendar year, the number of designated retail employees employed for the current calendar year is calculated based upon the average number per calendar week of designated retail employees who worked for compensation during the first 90 calendar days of the current year in which the retail establishment engaged in business.

(2) All designated retail employees who worked for compensation shall be counted, including, but not limited to:

a. Designated retail employees who are not covered by this article; and

b. Designated retail employees who worked in Pomona.

(Ord. No. 4300, § 2, 3-1-2021)

(a) Hiring entities shall provide each covered retail employee with premium pay consisting of an additional $4.00 per hour for each hour worked.

(b) Hiring entities shall provide the pay required by section 30-805(a) for a minimum of 120 days from the effective date of this article.

(c) Unless extended by city council, this article shall expire in 120 days.

(Ord. No. 4300, § 2, 3-1-2021)

(a) No retail establishment shall, as a result of this article going into effect, take any of the following actions:

(1) Reduce a covered retail employee's compensation;

(2) Limit a covered retail employee's earning capacity.

(b) It shall be a violation if this article is a motivating factor in a retail establishment's decision to take any of the actions in section 30-806(a) unless the retail establishment can prove that its decision to take the action(s) would have happened in the absence of this article going into effect.

(Ord. No. 4300, § 2, 3-1-2021)

(a) Hiring entities shall provide covered designated retail employees with a written notice of rights established by this article. The notice of rights shall be in a form and manner sufficient to inform designated retail employees of their rights under this article. The notice of rights shall provide information on:

(1) The right to premium pay guaranteed by this article;

(2) The right to be protected from retaliation for exercising in good faith the rights protected by this article; and

(3) The right to bring a civil action for a violation of the requirements of this article, including a retail establishment's denial of premium pay as required by this article and a retail establishment or other person's retaliation against a covered retail employees or other person for asserting the right to premium pay or otherwise engaging in an activity protected by this article.

(b) Hiring entities shall provide the notice of rights required by posting a written notice of rights in a location of the retail establishment utilized by employees for breaks, and in an electronic format that is readily accessible to the designated retail employees. The notice of rights shall be made available to the designated retail employees via smartphone application or an online web portal, in English and any language that the retail establishment knows or has reason to know is the primary language of the covered retail employee(s).

(Ord. No. 4300, § 2, 3-1-2021)

(a) Hiring entities shall retain records that document compliance with this article for covered designated retail employees.

(b) Hiring entities shall retain the records required by section 30-808(a) for a period of two years.

(c) If a retail establishment fails to retain adequate records required under section 30-808(a), there shall be a presumption, rebuttable by clear and convincing evidence, that the retail establishment violated this article for each covered retail employee for whom records were not retained.

(Ord. No. 4300, § 2, 3-1-2021)

No retail establishment employing a covered retail employees shall discharge, reduce in compensation, or otherwise discriminate against any covered retail employee for opposing any practice proscribed by this article, for participating in proceedings related to this article, for seeking to exercise their rights under this article by any lawful means, or for otherwise asserting rights under this article.

(Ord. No. 4300, § 2, 3-1-2021)

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

(Ord. No. 4300, § 2, 3-1-2021)

(a) The payment of unpaid compensation, liquidated damages, civil penalties, penalties payable to aggrieved parties, fines, and interest provided under this article is cumulative and is not intended to be exclusive of any other available remedies, penalties, fines, and procedures.

(b) A respondent found to be in violation of this article for retaliation under sections 30-806 and 30-809 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 article, and liquidated damages in an additional amount of up to twice the unpaid compensation.

(Ord. No. 4300, § 2, 3-1-2021)

Any covered retail employee that suffers financial injury as a result of a violation of this article, or is the subject of prohibited retaliation under section 30-809, may bring a civil action in a court of competent jurisdiction against the retail establishment or other person violating this article 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. 4300, § 2, 3-1-2021)

(a) Nothing in this article shall be construed to discourage or prohibit a retail establishment from the adoption or retention of premium pay policies more generous than the one required herein.

(b) Nothing in this article shall be construed as diminishing the obligation of a retail establishment to comply with any contract or other agreement providing more generous protections to a covered retail employee than required by this article.

(Ord. No. 4300, § 2, 3-1-2021)

This article provides minimum requirements for premium pay while working for a retail establishment 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 designated retail employees; and nothing in this article 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 covered retail employee's right to pursue any other remedies at law or equity for violation of their rights.

(Ord. No. 4300, § 2, 3-1-2021)

The provisions of this article are declared to be separate and severable. If any clause, sentence, paragraph, subdivision, section, subsection, or portion of this article, or the application thereof to any retail establishment, covered retail employee, person, or circumstance, is held to be invalid, it shall not affect the validity of the remainder of this article, or the validity of its application to other persons or circumstances.

(Ord. No. 4300, § 2, 3-1-2021)

All of the provisions of this article, or any part thereof, may be expressly waived in a collective bargaining agreement, but only if the waiver is explicitly set forth in the agreement in clear and unambiguous terms. Unilateral implementation of terms and conditions of employment by either party to a collective bargaining relationship shall not constitute a waiver of all or any of the provisions of this article.

(Ord. No. 4300, § 2, 3-1-2021)

Except for a collective bargaining agreement provision made pursuant to section 30-816, any waiver by a covered retail employee of any or all provisions of this article shall be deemed contrary to public policy and shall be void and unenforceable. Other than in connection with the bona fide negotiation of a collective bargaining agreement, any request by a retail establishment to a covered retail employee to waive rights given by this article shall be a violation of this article.

(Ord. No. 4300, § 2, 3-1-2021)