San Francisco County Municipal Code Art. 72 Grocery Worker Retention

Sec. 72.1. Purpose. Sec. 72.2. Definitions. Sec. 72.3. Continued Employment of Eligible Grocery Workers. Sec. 72.4. Transition Employment Period. Sec. 72.5. Public Notice of Change in Control. Sec. 72.6. Remedies for Violation. Sec. 72.7. Exemption for Collective Bargaining Agreement. Sec. 72.8. No Limitation of Other Rights and Remedies.

*Editor’s Note: Former Article 33D (“Grocery Worker Retention”) was redesignated as Labor and Employment Code Article 72 by Ord. 221-23, File No. 230835, approved November 3, 2023,

effective December 4, 2023, and operative January 4, 2024.

Supermarkets and other grocery retailers are the main points of distribution for food and daily necessities for the residents of San Francisco and are essential to the vitality of the community. The City has a strong interest in ensuring the welfare of the residents of San Francisco through the maintenance of health and safety standards in grocery establishments. Experienced grocery workers with knowledge of proper sanitation procedures and health regulations and an understanding of the clientele and communities they serve are instrumental in furthering this interest. A transitional retention period upon change in ownership, control, or operation of grocery stores ensures stabilization of this vital workforce, which results in preservation of health and safety standards. Through this ordinance, the City seeks to sustain the stability of this vital workforce. (Added as Police Code Sec. 3300D.1 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

For purposes of this Article, the following definitions apply: (a) “Change in Control” shall mean any sale, assignment, transfer, contribution, or other disposition (including by consolidation, merger, or reorganization) of all or substantially all of the assets of, or a controlling interest in, the Incumbent Grocery Employer or IGE Parent or any Grocery Establishment under the operation or control of either such Incumbent Grocery Employer or IGE Parent. (b) “City” shall mean the City and County of San Francisco. (c) “Eligible Grocery Worker” shall mean any individual whose primary place of employment is at the Grocery Establishment subject to a Change in Control, and who has worked for the Incumbent Grocery Employer for at least six months prior to the execution of the Transfer Document. “Eligible Grocery Worker” does not include a managerial, supervisory, or confidential employee. (d) “Employment Commencement Date” shall mean the date on which an Eligible Grocery Worker retained by the Successor Grocery Employer pursuant to this Article commences work for the Successor Grocery Employer in exchange for compensation and benefits under the terms and conditions established by the Successor Grocery Employer and as required by law and any applicable collective bargaining agreement, if any. (e) “Grocery Establishment” shall mean a retail store in the City that is over 15,000 square feet in size and sells primarily household foodstuffs for offsite consumption, including fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked foods, and/or prepared foods. Other household supplies or other products sold by the “Grocery Establishment” shall be secondary to the primary purpose of food sales. (f) “Incumbent Grocery Employer” shall mean the Person that owns, controls, and/or operates the Grocery Establishment prior to the Change in Control. (g) “IGE Parent” shall mean any Person who controls the Incumbent Grocery Employer. (h) “Person” shall mean an individual, proprietorship, corporation, partnership, limited partnership, limited liability partnership or company, trust, business trust, estate, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign. (i) “Successor Grocery Employer” shall mean the Person that owns, controls, and/or operates the Grocery Establishment after the Change in Control. (j) “Transfer Document” shall mean the purchase agreement or other document(s) effecting the Change in Control. (Added as Police Code Sec. 3300D.2 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) The Incumbent Grocery Employer shall, within 15 days after the execution of the Transfer Document, provide to the Successor Grocery Employer the name, address, date of hire, and employment occupation classification of each Eligible Grocery Worker. (b) The Successor Grocery Employer shall maintain a preferential hiring list of Eligible Grocery Workers identified by the Incumbent Grocery Employer as set forth in subsection (a) of this section and shall be required to hire from that list for a period beginning upon the execution of the Transfer Document and continuing for 90 days after the Grocery Establishment is fully operational and open to the public under the Successor Grocery Employer. (c) If the Successor Grocery Employer extends an offer of employment to an Eligible Grocery Worker, the Successor Grocery Employer shall retain written verification of that offer for no less than three years from the date the offer was made. The verification shall include the name, address, date of hire, and employment occupation classification of each Eligible Grocery Worker to whom the offer was made. (Added as Police Code Sec. 3300D.3 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) A Successor Grocery Employer shall retain each Eligible Grocery Worker hired pursuant to this Article for no less than 90 days following the Eligible Grocery Worker’s Employment Commencement Date. During this 90-day transition employment period, Eligible Grocery Workers shall be employed under the terms and conditions established by the Successor Grocery Employer, as required by law and pursuant to the terms of an applicable collective bargaining agreement, if any. (b) If within the period established in Section 72.3(b) the Successor Grocery Employer determines that it requires fewer Eligible Grocery Workers than were required by the Incumbent Grocery Employer, the Successor Grocery Employer shall retain Eligible Grocery Workers by seniority within each job classification to the extent that comparable job classifications exist or pursuant to an applicable collective bargaining agreement, if any. Nonclassified Eligible Grocery Workers shall be retained by seniority and according to experience or pursuant to the terms of an applicable collective bargaining agreement, if any. (c) During the 90-day transition employment period, the Successor Grocery Employer shall not discharge without cause an Eligible Grocery Worker retained pursuant to this Article. (d) At the end of the 90-day transition employment period, the Successor Grocery Employer shall do a written performance evaluation for each Eligible Grocery Worker retained pursuant to this Article. If the Eligible Grocery Worker’s performance during the 90-day transition employment period is satisfactory, the Successor Grocery Employer shall consider offering the Eligible Grocery Worker continued employment under the terms and conditions established by the Successor Grocery Employer and as required by law. The Successor Grocery Employer shall retain a record of the written performance evaluation for a period of no less than three years. (Added as Police Code Sec. 3300D.4 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) The Incumbent Grocery Employer shall post public notice of the Change in Control at the location of the affected Grocery Establishment within five business days after the execution of the Transfer Document. Notice shall remain posted during any closure of the Grocery Establishment and until the Grocery Establishment is fully operational and open to the public under the Successor Grocery Employer. (b) Notice shall include, but is not limited to, the name of the Incumbent Grocery Employer and its contact information, the name of the Successor Grocery Employer and its contact information, and the effective date of the Change in Control. (c) Notice shall be posted in a conspicuous place or places at the Grocery Establishment so as to be readily viewed by Eligible Grocery Workers, other employees, customers, and other members of the public. (Added as Police Code Sec. 3300D.5 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

(a) An Eligible Grocery Worker or Workers may bring an action in the Superior Court of the State of California against the Incumbent Grocery Employer and/or the Successor Grocery Employer for violations of this Article, and may be awarded the following relief: (1) Hiring and reinstatement rights, whereupon the 90-day transition employment period shall not commence until the Eligible Grocery Worker’s Employment Commencement Date with the Successor Grocery Employer. (2) Back pay for each day of the violation and/or front pay for each day during which the violation will continue. Back pay and front pay shall be calculated at a rate of compensation not less than the higher of (i) the average regular rate of pay received by the Eligible Grocery Worker during the last three years of the Eligible Grocery Worker’s employment in the same occupation classification. or (ii) the most recent regular rate received by the Eligible Grocery Worker while employed by either the Incumbent Grocery Employer or the Successor Grocery Employer. (3) Value of the benefits the Eligible Grocery Worker would have received under the Successor Grocery Employer’s benefit plan had the violation(s) not occurred. (b) If the Eligible Grocery Worker or Workers is the prevailing party in any legal action taken pursuant to this Section, the court shall award reasonable attorneys’ fees and costs as part of the costs recoverable. (Added as Police Code Sec. 3300D.6 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

Parties subject to this Article may by collective bargaining agreement provide that the agreement supersedes the requirements of this Article. (Added as Police Code Sec. 3300D.7 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

This Article does not in any way limit the rights and remedies that the law otherwise provides to Eligible Grocery Workers, including but not limited to the rights to be free from wrongful termination and unlawful discrimination. (Added as Police Code Sec. 3300D.8 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)

If any part or provision of this Article, or the application of this Article in any circumstance, is enjoined or held invalid by a court of competent jurisdiction, the remainder of this Article, including the application of such part or provision in other circumstances, shall not be affected by such action and shall continue in full force and effect. To this end, the parts and provisions of this Article, and their application in particular circumstances, are severable. (Added as Police Code Sec. 3300D.9 by Ord. 90-06, File No. 060395, App. 5/12/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)