San Diego Municipal Code Div. 1 City of San Diego Traffic Control Worker Minimum Wage Ordinance

(“City of San Diego Traffic Control Worker Prevailing Wage Ordinance” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (Retitled to “City of San Diego Traffic Control Worker Minimum Wage Ordinance” on 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

This Division shall be cited as the City of San Diego Traffic Control Worker Minimum Wage Ordinance. (“Citation” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (“Citation” renumbered from Section 310.0102 to Section 310.0101 and amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024. Former Section 310.0101 “Purpose and Intent” renumbered to Section 310.0102.)

(a) The purpose and intent of this Division is to establish a City-required minimum wage, referred to as the prevailing wage rate, for specified employees engaged in traffic control work on City streets and public rights-of-way, including sidewalk areas. The City requires payment of the prevailing wage rate to traffic control workers as a condition of a Traffic Control Permit issued under San Diego Municipal Code section 129.0742, as may be amended.

(b) The City Council makes the following findings in support of the City of San
Diego Traffic Control Worker Minimum Wage Ordinance:

(1) Traffic control work includes stopping, slowing, guiding, directing,
controlling, and monitoring traffic on City streets and public rights-of-
way. Traffic control workers are responsible for maintaining the safety
of drivers and pedestrians on the City’s streets and in the public rights-
of-way adjacent to or near construction areas.

(2) Unexpected and difficult driving conditions in these construction areas
can present a significant risk of harm to drivers, other users of the
City’s public rights-of-way, and the traffic control workers themselves.

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(3) Low wages can lead to less qualified workers and more difficult
working conditions, which can increase the risk of harm to workers
and users of the City’s public rights-of-way.

(4) Traffic control workers employed by contractors on the City’s public
works projects, involving the construction, reconstruction, or repair of
public buildings, streets, utilities, and other public works, are paid a
minimum wage, in accordance with San Diego Municipal Code
section 22.3019, as may be amended, related to compliance with State
of California prevailing wage laws. The prevailing wage is an hourly
rate paid on public works projects to specified workers engaged in a
particular craft, classification, or type of work within the locality and
in the nearest labor market area.

(5) By adopting this Division, the City Council establishes a minimum
wage standard to apply to all traffic control workers on City streets and
public rights-of-way, with limited exceptions as set forth in this
Division, as a means to ensure that traffic control work in the City is
being done by the most qualified and consistently and sufficiently paid
workers.
(“Purpose and Intent” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.)
(“Purpose and Intent” renumbered from Section 310.0101 to Section 310.0102 and
amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024. Former Section 310.0102
“Citation” renumbered to Section 310.0101.)

This Division is adopted in accordance with the powers vested in the City by the Constitution and laws of the State of California, including the police powers vested in the City by Article XI, section 7, of the California Constitution and California Labor Code section 1205. This Division is not intended to create any power, duty, or obligation in conflict with federal or state laws. (“Authority” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (Amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

For purposes of this Division, defined terms appear in italics. The following definitions apply to the terms in this Division:

City means the City of San Diego.

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Employee means any person engaged in traffic control work, including setting up traffic control, guiding and monitoring vehicles, and restoring the roadway, as described in the traffic control plan required by the City under a City-issued Traffic Control Permit, in accordance with San Diego Municipal Code section 129.0742, as may be amended.

Employer means any person or entity, including an association, organization, partnership, business trust, limited liability company, or corporation, who exercises control over the wages, hours, or working conditions of any employee and is subject to a City-issued Traffic Control Permit, excluding any person or entity engaged in activities as described in San Diego Municipal Code section 82.27, and local, state, and federal public agencies, including the City.

Enforcement Office means the City’s Compliance Department, Office of Labor Standards and Enforcement, or other City office or department under the authority of the City Manager to enforce this Division.

Enforcement Officer means any person authorized by the City Manager to enforce violations of this Division.

Prevailing wage rate means the prevailing rate of per diem wages, including any predetermined increases, as determined by the California Director of Industrial Relations in accordance with California Labor Code sections 1770 and 1773, and related laws, as may be amended, for the classification of “Laborer: Building Construction, Group 1” (or as this classification may be amended) working on a public works project in San Diego County and performing traffic control work by any method. The prevailing wage rate, including any predetermined increases, is determined as of the date the City issues the Traffic Control Permit, following City approval of the traffic control plan, and it remains in effect for the duration of the Traffic Control Permit. The prevailing wage rate includes (1) the prevailing basic straight-time hourly rate of pay, (2) the prevailing rate for holiday and overtime work, and (3) the prevailing rate of employer payments for all programs or benefits for employees, consistent with the requirements of California Code of Regulations, Title 8, sections 16000 through 16301, and related regulations, as may be amended. The prevailing wage rate does not include the requirement to pay travel or subsistence payments. The employer may make training contribution payments directly to an employee or to an approved apprenticeship program, at the discretion of the employer.

Retaliation means any threat, discipline, discharge, demotion, suspension, reduction
in employee hours, or any other adverse employment action against any employee for
exercising or attempting to exercise any right under this Division.

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Traffic Control Permit means a permit required and issued by the City under San Diego Municipal Code section 129.0742, as may be amended, or any related administrative regulation promulgated by the City Manager, for the temporary use of a City street, sidewalk, or parking lane when a permittee is working on a construction project, improvement project, or other work encroaching into the public right-of-way, including sidewalks, parking spaces, medians, alleys, and streets. Traffic Control Permit does not include a permit issued by the City Manager, Police Chief, or designees for the limited purpose of controlling traffic for a special event under San Diego Municipal Code section 82.27. (“Definitions” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (Amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

(a) A City-issued Traffic Control Permit must include the requirement that all employers responsible for performing work under the Traffic Control Permit pay their employees no less than the prevailing wage rate, in effect at the time the City issues the Traffic Control Permit, unless one of the following exceptions applies:

(1) the employer is responsible for traffic control work related to the
construction, renovation, or repair of a single-family home or duplex;

(2) the employer is responsible for traffic control work on a project
costing $1,000 or less, as specified in California Labor Code section
1771 or any subsequent cost threshold applicable to the payment of
prevailing wages established by California law;

(3) the employer is a gas or electric utility company, and their employee is
performing traffic control work for one hour or less per workday or
one hour or less per shift;

(4) the employer is responsible for traffic control work related to a public
works project for any public agency, including the City, and another,
higher minimum wage rate applies to the work; or

(5) the employer is prohibited from paying the prevailing wage rate by
law or by a state or federal funding source requirement applicable to
the work authorized by the Traffic Control Permit.

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(b) Employers subject to this Division must pay their employees the prevailing
wage rate, including any predetermined increases, as determined by the City
at the time the City issues the Traffic Control Permit, for the duration of the
work performed under the Traffic Control Permit
(“Payment of Prevailing Wage” added 9-18-2023 by O-21723 N.S.; effective
10-18-2023.)
(Retitled from “Payment of Prevailing Wage” to “Minimum Wage Requirement
Under City-Issued Traffic Control Permit” and amended 10-7-2024 by
O-21876 N.S.; effective 11-6-2024.)

Every employer must post a notice at the job site where any employee works or otherwise provide written notice to employees informing employees of their rights under this Division and the prevailing wage rate in effect under this Division, including the effective dates and any predetermined increases related to the City’s issuance of an applicable Traffic Control Permit. (“Notice Requirements” added 10-7-2024 by O-21876 N.S.; effective 11-6-2024. Former Section 310.0106 “Enforcement” amended and renumbered to Section 310.0108.)

(a) Any employer who violates any requirement of this Division, except the notice requirements set forth in San Diego Municipal Code section 310.0106, is subject to a civil penalty, assessed and payable to the City, of no less than $500, but no more than $1,000 per violation. Each day that an employer fails to pay an employee the prevailing wage rate constitutes a separate and distinct violation of this Division.

(b) Any employer who fails to comply with the notice requirements set forth in
San Diego Municipal Code section 310.0106 is subject to a civil penalty,
assessed and payable to the City, of $100 for each employee who was not
given the required notice, up to a maximum of $2,000 for each applicable
Traffic Control Permit.

(c) An employer’s failure to pay their employees wages equivalent to the
prevailing wage rate may be enforced through revocation of the applicable
Traffic Control Permit by the City Manager or designee, in accordance with
the San Diego Municipal Code.

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(d) To enforce this Division, any aggrieved employee, the Enforcement Officer, or
both, may seek payment of wages unlawfully withheld by employers,
penalties for violations as described in this Division, court costs, and
attorneys’ fees.

(e) If an employer ceases their business operations, or sells, exchanges, transfers,
or otherwise disposes of the employer’s business, then any person or entity
that becomes a successor to the business is liable for any unpaid amounts
owed under this Division if, at the time of the conveyance of the business, the
successor has actual or constructive knowledge of the amounts owed as
determined by the City.

(f) This Division is not intended to limit any employee’s right to obtain relief to
which the employee may be entitled under applicable laws. Exhaustion of
remedies under this Division is not a prerequisite to the assertion of any right.
(“Prevailing Wage Requirement in Public Right-of-Way Permits” added 9-18-2023
by O-21723 N.S.; effective 10-18-2023.)
(Retitled from “Prevailing Wage Requirement in Public Right-of-Way Permits” to
“Violations” and amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

(a) The Enforcement Office has full authority to implement and enforce this Division, consistent with the authority, powers, and procedures of the Enforcement Office, set forth in Chapter 1, Article 2, of the San Diego Municipal Code, as may be amended, and other applicable City ordinances and regulations. This authority includes the power to investigate any possible violations of this Division by an employer, to demand payroll and business records from all employers issued a Traffic Control Permit, to access an employer’s workplace during workplace hours to examine and audit records, and to conduct employee and other worker interviews at a workplace or job site.

(b) Any person may file a written complaint with the Enforcement Office
regarding a violation of this Division. The written complaint must describe the
alleged violation, including a statement of relevant facts, dates, places, and
persons or entities responsible for the alleged violation. Complaints alleging a
violation of this Division must be filed with the Enforcement Office within
two years of the occurrence of the alleged violation.

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(c) To encourage reporting and cooperation with investigations, the Enforcement
Office must maintain the confidentiality of any person reporting alleged
violations and persons assisting in any investigation, including the name,
address, and other identifying information of the person, to the extent
permitted by law.

(d) The Enforcement Office must also protect proprietary business information, to
the extent permitted by law.

(e) The Enforcement Office may disclose information as necessary to enforce this
Division, as required by law, or for other lawful purposes.

(f) The Enforcement Officer may issue subpoenas in accordance with California
law and the San Diego Municipal Code.

(g) The Enforcement Officer may conduct an informal settlement conference with the employer to provide an opportunity for the employer to remedy any alleged violations without further administrative enforcement action. The Enforcement Officer has discretion to impose civil penalties in accordance with San Diego Municipal Code section 12.0805, as may be amended, as a condition of settlement of an alleged violation.

(h) The City Manager or Enforcement Officer may promulgate policies, rules, and
administrative regulations necessary to implement the purpose, intent, and
provisions of this Division, including procedures for handling complaints by
employees.

(i) The Enforcement Office must provide a summary report of its activities each
year to the City Council by October 1, detailing the enforcement of this
Division.

(j) The Enforcement Office may collaborate with, including entering into a
contract or contracts with, workers’ rights advocates and community-based
organizations to assist in outreach efforts and other governmental agencies to
assist in enforcement. Any contract under this subsection is subject to the
City’s procurement requirements as set forth in the San Diego Municipal
Code.

(k) The City’s failure to investigate an alleged violation or otherwise enforce any
of the provisions of this Division does not create any right of action by any
person, including an aggrieved employee, to recover damages or other
remedies from the City.

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(l) Consistent with the provisions of this Division, the City Manager or Enforcement Officer may establish and enforce any additional administrative rules, regulations, and standards they determine to be necessary to carry out the purpose and intent of this Division. (“Enforcement” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (Renumbered from former Section 310.0106 to Section 310.0108, retitled from “Enforcement” to “Duties and Authority of the Enforcement Office and Enforcement Officer” and amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024. Former Section 310.0108 “No Effect on Higher Wages” renumbered to Section 310.0110.)

(a) Employers are prohibited from engaging in retaliation against any employee.

(b) The rights of employees protected by this Division include the right to request
and receive payment of the prevailing wage rate; file a complaint for alleged
violations of this Division with the Enforcement Office, another appropriate
enforcement agency, or the court; bring legal action for any violation of law
concerning wages, hours, or other standards or rights; communicate with any
person about a violation or alleged violation of this Division; participate in
any administrative or judicial process regarding an alleged violation of this
Division; and inform any person of their potential rights under this Division.
The rights of this Division apply to any employee who reasonably, even if
mistakenly, and in good faith reports a violation of this Division to their
employer or a governmental agency responsible for enforcing any wage and
hour laws applicable to the employer.

(c) Exhaustion of remedies under this Division is not a prerequisite to the
assertion of any right.

(d) An employer’s adverse action against an employee within 90 calendar days of
the employee’s exercise of any protected right under this Division creates a
rebuttable presumption that the employer acted in retaliation against the
employee for the employee’s exercise of the protected right.
(“Employee Rights” added 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

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This Division establishes a local minimum wage standard. It is not intended to conflict with applicable federal or state laws or to discourage or prohibit employers from paying higher wages to their employees. Further, this Division must not be interpreted to modify any obligation of employers to comply with any contract, collective bargaining agreement, employment benefit plan, other agreement, or applicable federal or state laws, including requirements to pay higher wages and other benefits. (“No Effect on Higher Wages” added 9-18-2023 by O-21723 N.S.; effective 10-18-2023.) (“No Effect on Higher Wages” renumbered from Section 310.0108 to Section 310.0110 and amended 10-7-2024 by O-21876 N.S.; effective 11-6-2024.)

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