Chapter 4.95

MINIMUM WAGE ORDINANCE

FUNDING OF SPORTS FACILITY CONSTRUCTION

Sections:

Sections:

• 4.100.010 Title.

• 4.100.020 Authority.

The City of San José may participate in the building of a sports facility using tax dollars only after obtaining a majority vote of the voters of the City of San José approving such expenditure.

A "sports facility" for the purpose of this chapter is to be any structure designed to seat more than five thousand people at any one time for the purpose of viewing a sporting or recreational event.

"Tax dollars" for the purposes of this chapter include, without limitation, any commitment to fund

• 4.100.030 Definitions.

• 4.100.040 Minimum wage.

• 4.100.045 Exemption for youth training programs.

• 4.100.050 Waiver through collective bargaining.

• 4.100.060 Notice, posting and payroll records.

• 4.100.070 Retaliation prohibited.

• 4.100.080 Implementation.

• 4.100.090 Enforcement.

• 4.100.100 Relationship to other requirements.

• 4.100.110 Application of minimum wage to welfare-to-work programs.

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§ 4.100.040

This chapter shall be known as the "Minimum Wage Ordinance."

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

This chapter is adopted pursuant to the powers vested in the City of San José under the laws and Constitution of the State of California, but not limited to, the police powers vested in the City pursuant to Article XI, Section 7 of the California Constitution and Section 1205(b) of the California Labor Law.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

The following terms shall have the following meanings:

• A. "City" shall mean City of San José.

• B. "Employee" shall mean any person who:

  1. In a calendar week performs at least two (2) hours of work for an Employer as defined below.

  2. 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, or is a participant in a Welfare-to-Work Program.

• C. "Employer" shall mean any person, including corporate officers or executives, as defined in Section 18 of the California Labor Code, who directly or indirectly through any other person, including through the services of a temporary employment agency, staffing agency or sim-

ilar entity, employs or exercises control over the wages, hours or working conditions of any Employee and who is either subject to the Business License Tax Chapter 4.76 of the Municipal Code or maintains a facility in the City.

• D. "Minimum Wage" shall have the meaning set forth in Section 4.100.040 of this Chapter.

• E. "Office" shall mean the Office of Equality Assurance or such other City department or office as the Council shall by resolution designate.

• F. "Youth Training Program" means any temporary youth employment program serving disadvantaged youth through which persons aged seventeen (17) years or younger are employed by or engaged in employment and trained for future employment that is coordinated by a nonprofit or governmental entity.

• G. "Youth Training Program Employee" means a participant who is aged seventeen (17) years or younger who is employed by a Youth Training Program Employer for 120 days or less during a calendar year.

• H. "Welfare-to-Work Program" shall mean the CalWORKS Program, County Adult Assistance Program (CAAP) which includes the Personal Assisted Employment Services (PAES) Program, and General Assistance Program, and any successor programs that are substantially similar to them.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12; 29829.)

• A. Employers shall pay Employees no less than the Minimum Wage set forth in this Section for each hour worked within the geographic boundaries of the City.

• B. The Minimum Wage for Youth Training Program Employees shall be an hourly rate of ten

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dollars ($10). To prevent inflation from eroding its value, beginning on January 1, 2014, and each year thereafter, the Minimum Wage shall increase by an amount corresponding to the prior year's increase, if any, in the cost of living. The prior year's increase in the cost of living shall be measured by the percentage increase, if any, as of August of the immediately preceding year over the level as of August of the previous year of the Consumer Price Index (Urban Wage Earners and Clerical Workers, U.S. City Average for All Items) or its successor index as published by the U.S. Department of Labor or its successor agency, with the amount of the minimum wage increase rounded to the nearest multiple of five cents. The adjusted minimum wage shall be announced by October 1 of each year, and shall become effective as the new minimum wage on January 1.

• C. As of the date the ordinance enacting this Section becomes effective, the Minimum Wage shall be an hourly rate of ten dollars and fifty cents ($10.50). Effective July 1, 2017, the Minimum Wage shall be an hourly rate of twelve dollars ($12.00).

• D. Subject to the provisions of Subsection F, effective January 1, 2018, the Minimum Wage shall be an hourly rate of thirteen dollars and fifty cents ($13.50) and effective January 1, 2019, the Minimum Wage shall be an hourly rate of fifteen dollars ($15.00).

• E. To prevent inflation from eroding its value, beginning on January 1, 2020, and each January 1st thereafter, the Minimum Wage shall increase by an amount corresponding to the increase, if any, in the cost of living, not to exceed 5%. The prior year's increase in the cost of living shall be measured by the percentage increase, if any, as of August of the immediately preceding year of the Bay Area Consumer Price Index (Urban Wage Earners and Clerical Workers, San Francisco-OaklandSan José, CA for All Items) or its successor index as published by the U.S. Department of

Labor or its successor agency, with the amount of the Minimum Wage increase rounded to the nearest multiple of five (5) cents. If there is no net increase in the cost of living, the minimum wage shall remain unchanged for that year. The adjusted Minimum Wage shall be announced by October 1st of each year, and shall become effective as the new Minimum Wage on January 1st of the following year.

• F. On or before September 1, 2017, and on or before every September 1 thereafter until the minimum wage is fifteen dollars ($15.00) per hour, to ensure that economic conditions can support a minimum wage increase, the Office of Equality Assurance shall annually make a determination and certify to the City Manager whether each of the conditions specified in this Subsection is met. The calculation for the condition specified in this Subsection F shall be made by the Office using data posted by the State Board of Equalization online in accordance with the procedure and requirements specified in California Labor Code Section 1182.12, as described below:

  1. Total nonfarm employment for California, seasonally adjusted, decreased over the three-month period from April to June, inclusive, prior to the September 1 determination. This calculation shall compare seasonally adjusted total nonfarm employment in June to seasonally adjusted total nonfarm employment in March, as reported by the State Employment Development Department.

  2. Total nonfarm employment for California, seasonally adjusted, decreased over the six-month period from January to June, inclusive, prior to the September 1 determination. This calculation shall compare seasonally adjusted total nonfarm employment in June to seasonally adjusted total nonfarm employment in December, as reported by the State Employment Development Department.

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§ 4.100.050

3. California state retail sales and use tax cash receipts from a 3.9375- percent tax rate for the July 1 to June 30, inclusive, period ending one month prior to the September 1 determination date is less than retail sales and use tax cash receipts from a 3.9375-percent tax rate for the July 1 to June 30, inclusive, period ending 14 months prior to the September 1 determination date.

   • (i) The State Board of Equalization shall publish by the 10th of each month on its Internet Web site the total retail sales (sales before adjustments) for the prior month derived from their daily retail sales and use tax reports.

   • (ii) The State Board of Equalization shall publish by the 10th of each month on its Internet Web site the monthly factor required to convert the prior month's retail sales and use tax total from all tax rates to a retail sales and use tax total from a 3.9375-percent tax rate.

   • (iii) The Department of Finance shall multiply the monthly total from clause (i) by the monthly factor from clause (ii) for each month.

   • (iv) The Department of Finance shall sum the monthly totals calculated in clause (iii) to calculate the 12month July 1 to June 30, inclusive, totals needed for the comparison in this subparagraph.

• G. If, for any year, the condition in either subparagraph (a) or (b) of paragraph (D) is met, and if the condition in subparagraph (c) of paragraph (D) is met, the City Manager may, on or before September 1 of that year, make a determination to temporarily suspend the minimum wage increase scheduled for the following year.

• H. If the City Manager makes a determination to temporarily suspend the scheduled minimum

wage increases for the following year, all dates specified in paragraph (B) that are subsequent to the September 1 determination date shall be postponed by an additional year.

• I. A violation for unlawfully failing to pay the Minimum Wage shall be deemed to continue from the date immediately following the date that the wages 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 wages are paid in full.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12; 29829.)

• A. Youth Training Program Employers may pay each Youth Training Program Employee an hourly wage that is the greater of the wage set forth in section 4.100.040(B) or the rate set forth in state or federal law

• B. The Office shall establish a procedure to certify whether an Employer is a Youth Training Program Employer serving disadvantaged youth, including but not limited to consideration of the following criteria:

  1. The Employer's nonprofit corporate status or government status or whether the program designated by the Employe as a Youth Training Program is coordinated with a nonprofit organization or governmental entity;

  2. The components of the Employer's Youth Training program, including employment training designed to help program participants transition towards unsubsidized competitive employment; and

  3. Any other criteria as may be developed by the Office as specified in the administrative regulations adopted consistent with this Chapter.

• (Ord. 29829.)

To the extent required by federal law, all or any portion of the applicable requirements of this Chap-

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§ 4.100.050

ter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

he or she was paid shall be presumed to be accurate, absent clear and convincing evidence otherwise.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

• A. By December 1 of each year, the Office shall publish and make available to Employers a bulletin announcing the adjusted Minimum Wage rate for the upcoming year, which shall take effect on January 1. In conjunction with this bulletin, the Office shall by December 1 of each year publish and make available to Employers, in all languages spoken by more than five percent of the work force in the City, a notice suitable for posting by Employers in the workplace informing Employees of the current Minimum Wage rate and of their rights under this Chapter.

B. Every Employer shall post in a conspicuous place at any workplace or job site where any Employee works the notice published each year by the Office informing Employees of the current Minimum Wage rate and of their rights under this Chapter. Every Employer shall post such notices in any language spoken by at least five percent of the Employees at the workplace or job site. Every Employer shall also provide each Employee at the time of hire with the Employer's name, address, and telephone number in writing.

C. Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the City access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting wages paid or does not allow the City reasonable access to such records, the Employee's account of how much

It shall be unlawful for an Employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter and to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter.

Taking adverse action against a person within ninety (90) days of the person'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.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

• A. Guidelines. The Office shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Office shall have the force and effect of law and may be relied on by Employers, Employees and other parties to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform Employees of their rights under this Chapter, for monitoring Employer compliance with this Chapter, and for providing ad-

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§ 4.100.090

ministrative hearings to determine whether an Employer or other person has violated the requirements of this Chapter.

• B. Reporting Violations. An Employee or any other person may report to the Office in writing any suspected violation of this Chapter. The Office 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 Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Office may disclose his or her name and identifying information as necessary to enforce this Chapter or other employee protection laws. In order to further encourage reporting by Employees, if the Office notifies an Employer that the Office is investigating a complaint, the Office shall require the Employer to post or otherwise notify its Employees that the Office is conducting an investigation, using a form provided by the City.

• C. Investigation. The Office shall be responsible for investigating any possible violations of this Chapter by an Employer or other person. The Office shall have the authority to inspect workplaces, interview persons and request the City Attorney to subpoena books, papers, records, or other items relevant to the enforcement of this Chapter.

• D. Informal Resolution. The Office shall make every effort to resolve complaints informally, in a timely manner, and shall have a policy that the Office shall take no more than one year to resolve any matter, before initiating an enforcement action. The failure of the Office to meet these timelines within one year shall not be grounds for closure or dismissal of the complaint.

• (Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

• A. Where prompt compliance is not forthcoming, the Office shall take any appropriate enforcement action to secure compliance.

  1. The Office may issues an Administrative Citation pursuant to Chapter 1.15 of the Code with a fine of not more than $50 for each day or portion thereof and for each Employee or person as to whom the violation occurred or continued.

  2. Alternatively, the Office may initiate a proceeding under Chapter 1.14 of the Code by issuing a Compliance Order.

  3. The City may initiate a civil action for injunctive relief and damages and civil penalties in a court of competent jurisdiction.

• B. 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 awarded reasonable attorneys' fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day that the violation occurred or continued, reinstatement in employment and/or injunctive relief. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief to employees, and reasonable attorneys' fees and costs.

• C. This Section shall not be construed to limit an Employee's right to bring legal action for a

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violation of any other laws concerning wages, hours, or other standards or rights nor shall exhaustion of remedies under this Chapter be a prerequisite to the assertion of any right.

• D. Except where prohibited by state or federal law, City agencies or departments may revoke or suspend any registration certificates, permits or licenses held or requested by the Employer until such time as the violation is remedied.

• E. Relief. The remedies for violation of this Chapter include but are not limited to:

  1. Reinstatement, the payment of back wages unlawfully withheld, and the payment of an additional sum as a civil penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this Code or state law.

  2. Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages 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 wages are paid in full.

3. Reimbursement of the City's administrative costs of enforcement and reasonable attorneys fees.

• F. Posted Notice. If a repeated violation of this Chapter has been finally determined, the Office may require the Employer to post public notice of the Employer's failure to comply in a form determined by the City.

• (Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

This Chapter provides for payment of a local Minimum Wage and shall not be construed to pre-

empt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

The Minimum Wage established pursuant to Section 4.100.040B. of this Chapter shall apply to the Welfare-to-Work programs under which persons must perform work in exchange for receipt of benefits. Participants in Welfare-to-Work Programs shall not, during a given benefits period, be required to work more than a number of hours equal to the value of all cash benefits received during that period, divided by the Minimum Wage. (Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

Nothing herein shall preclude the City Council from imposing a cost recovery fee on all Employers to pay the cost of administering this Chapter. (Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)

This Chapter may be amended by the City Council without a vote of the people as regards the implementation or enforcement thereof, in order to achieve the purposes of this Chapter, but not with regard to lessening the substantive requirements of the Chapter or its scope of coverage.

(Measure D (Ord. 2012.1), adopted by electorate, 11-6-12)