CHAPTER 31.
LIVING WAGE ORDINANCE

Sections:

5-31.01    Title and Purpose

5-31.02    Findings

5-31.03    Definitions

5-31.04    Persons and Entities Subject to the Requirements of this Chapter

5-31.05    Living Wage Rate

5-31.06    Waivers

5-31.07    Required Contract Provisions

5-31.08    Exemptions

5-31.09    Retaliation and Discrimination Prohibited.

5-31.10    Employee Complaints to the City

5-31.11    Enforcement

5-31.12    Effective Date

5-31.01 Title and Purpose.

The purpose of this chapter is to assure that City employees, employees of City service contractors, subcontractors, and employees and contractors of City financial assistance earn an hourly wage that is sufficient to live with dignity and to achieve economic self-sufficiency. The City contracts with many businesses and organizations to provide services to the public, and provides financial assistance to developers and businesses for the purpose of promoting economic development and job growth. Such public expenditures should also be spent to set a community economic standard that permits workers to live out of poverty. The City Council finds that the use of City funds to provide living wage jobs will decrease poverty, increase consumer income, invigorate neighborhood businesses and reduce the need for taxpayer funded social service programs.

This chapter shall be known and may be cited as the “Living Wage Ordinance.” The purpose of this chapter is to protect the public health, safety and welfare. It does this by requiring that public funds be expended in such a manner as to facilitate individual self-reliance by employees of City contractors, lessees, recipients of City financial aid and their respective subcontractors.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.02 Findings.

(a)    The City of Emeryville awards contracts to private firms and other businesses to provide services to the public and to City government; and

(b)    The City of Emeryville has a limited amount of taxpayer resources to expend; and

(c)    The use of taxpayer dollars to promote sustenance and creation of living wage jobs will increase consumer income, decrease levels of poverty and reduce the need for taxpayer-funded social programs in other areas; and

(d)    When City funds are used to contract for services, such contracts should demonstrate an effort to promote an employment environment that enhances the general quality of life within the community and maximizes the productive effect of the City’s limited resources; and

(e)    The City’s use of contractors that do not provide health insurance to their employees can result in imposing the costs of their medical care on the county, state and federal governments; and

(f)    That employees are far likelier to be healthy if their employer provides reasonable health insurance to them and their dependents; and

(g)    The payment of a minimum level of compensation as required by this chapter benefits these interests.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.03 Definitions.

The following words and phrases whenever used in this chapter shall be construed as defined in this section:

a.    “City” means the City of Emeryville, Management of Emeryville Services Authority (“MESA”), and all City departments and agencies, including but not limited to the Emeryville Redevelopment Agency and the City of Emeryville Public Finance Authority.

b.    “City financial aid recipients” means all persons or entities that receive from the City direct assistance in the form of grants, loans, or loan guarantees, in-kind services, waivers of City fees, real property or other valuable consideration in the amount of more than one hundred thousand dollars ($100,000.00) within the City’s fiscal year (July 1st through June·30th). This term shall not include those who enjoy an economic benefit as an incidental effect of City policies, regulations or ordinances.

c.    “Contractor” means any person or entity that enters into a service contract as hereafter defined with the City in an amount equal to or greater than twenty-five thousand dollars ($25,000.00) within the City’s fiscal year. (Contractor includes subcontractors whose employees are engaged in City funded services.)

d.    “Employee” means any individual employed by an employer who performs at least twenty-five percent (25%) of the work arising from a service contract, City financial aid, or City lease. No work may be reassigned in order to evade coverage under this chapter.

e.    “Health Benefits” means an employer’s monetary contribution toward the cost of health and medical care insurance for covered employees and their dependents. Health benefits may include the following types of insurance: medical health, including mental health, dental and vision care. The hourly cost of providing health benefits shall be credited as compensation along with wages under this chapter. Retirement benefits, accidental death and dismemberment insurance, life insurance, disability insurance and other benefits that do not provide medical or health-related coverage shall not be credited as compensation.

f.    “Nonprofit” shall mean a nonprofit organization described in Section 501(c) of the Internal Revenue Code of 1954 which is exempt from taxation under Section 501(c) of that code, or any nonprofit educational organization qualified under Section 23701(d) of the Revenue and Taxation Code.

g.    “Person” means any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts.

h.    “Service contract” means a contract given a contractor by the City for twenty-five thousand dollars ($25,000.00) or more for the furnishing of services to or for the City, except those contracts where services are incidental to the delivery of products, equipment or commodities. Service contracts include but are not limited to security guard services, janitorial services, waste management, landscaping, parking attendant services, and towing. “Service contract” does not include: (1) a contract between the City and another governmental entity or public utility; (2) a contract wherein prevailing wage as defined by Division 2, Part 7, of the California Labor Code applies so long as prevailing wage is greater than the living wage requirement; and (3) a contract subject to federal or state laws or regulations that would preclude application of the living wage requirement otherwise applicable pursuant to this chapter.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.04 Persons and Entities Subject to the Requirements of this Chapter.

The persons and entities described below shall comply with the minimum compensation standards established by this chapter if they employ more than ten employees:

a.    The City of Emeryville, including all its agencies, departments and offices.

b.    For-profit service contractors which receive contract(s) from the City for twenty-five thousand dollars ($25,000.00) or more within the City’s fiscal year. Compliance shall be required during the term of the contract for all employees who perform at least twenty-five percent (25%) of the work arising from the service contract.

c.    Nonprofit service contractors which receive contracts from the City of one hundred thousand dollars ($100,000.00) or more within the City’s fiscal year. Compliance shall be required during the term of the contract for all employees who perform at least twenty-five percent (25%) of the work arising from the service contract.

d.    Lessees of public property, licensees, concessionaires and franchisees which employ twenty-five (25) or more employees and have three hundred fifty thousand dollars ($350,000.00) or more in annual gross receipts. Compliance shall be required during the lease term for any employees who spend twenty-five percent (25%) or more of their compensated time on the leased property or engage in work directly related to the license, concession or franchise.

e.    City financial aid recipients which receive more than one hundred thousand dollars ($100,000.00) in loans or other cash and/or noncash assistance within the City’s fiscal year. Compliance shall be required for a duration of one year for each one hundred thousand dollars ($100,000.00) of assistance, up to a maximum duration of five (5) years, following receipt of the aid for all employees who spend twenty-five percent (25) or more of their compensated time engaged in work directly related to the purposes for which the City provided the aid.

f.    Subcontractors and sublessees of any of the entities or persons described in subparagraphs (a) through (d) above:

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.05 Living Wage Rate.

All persons and entities subject to this chapter shall pay covered employees a wage of no less than the living wage set forth in this chapter:

a.    “Living wage” means no less than twelve dollars ($12.00) per hour including wages and health benefits. If employer contributions for health benefits are not paid on an hourly basis, the employer must demonstrate to the City the hourly value of such benefits in order to receive credit for such payments to covered employees.

b.    Additional Compensation Permissible. Nothing in this chapter shall be construed to limit an employer’s discretion to provide greater wages to its employees.

c.    The initial rates set forth in subsection (a) of this section shall increase annually on July 1st, to reflect the twelve (12) month average in the Consumer Price Index for all urban consumers in the San Francisco-Oakland-San Jose Metropolitan Statistical Areas for the preceding year from March through February, not to exceed three percent (3%) in any one year.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007; Sec. 2, Ord. 14-005, Eff. June 5, 2014)

5-31.06 Waivers.

Following a review and recommendation by the City Manager, the City Council may approve waivers with or without conditions to any of the requirements and regulations set forth in this ordinance, or in any implementing policies, upon the following findings:

a.    The services to be provided are available from a single source and that source has significant barriers to meeting the requirements of the ordinance; or

b.    A waiver is necessary to provide emergency services essential to mitigate or prevent possible threats to public safety or public health for a limited period of time; or

c.    All bidders for the service to be provided have significant barriers to meeting the requirements of the ordinance; or

d.    Any other circumstances that the City Council finds to be in the public interest.

e.    All of the provisions of this chapter, or any part hereof, may be waived by a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.07 Required Contract Provisions.

Every City contract, lease, license, concession agreement, franchise agreement or agreement for financial aid with an employer shall require compliance with the requirements of this chapter. Such contract provisions shall address the employer’s duty to promptly provide to the City documents and information verifying compliance with the requirements of this chapter, and sanctions for noncompliance. Such contract provisions shall also require the employer to notify each of its affected employees with regards to wages that are required to be paid pursuant to this chapter.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.08 Exemptions.

The requirements of this chapter shall not be applicable to the following employees:

a.    Employees of another government agency, including without limitation, cities, counties, state agencies, and public utilities.

b.    An employee participating in a temporary job training program approved by the City in which a significant component of the employee’s training consists of acquiring specialized knowledge, abilities, skills or job readiness (e.g., the importance of proper work attire, punctuality and workplace demeanor).

c.    An employee who is in an internship or other job training program for which the employee is also receiving academic credit.

d.    An employee who is under eighteen (18) years of age.

e.    A temporary employee of the City of Emeryville who is employed for a limited term to a regular or non-regular position including casual, seasonal and emergency appointments with no guarantee of continued employment beyond the initial hire season.

f.    Volunteers.

g.    Owners of a business who are also employees of the business and their immediate family members (spouse, domestic partner, parent, siblings and children).

h.    Employees who are standing by or on-call according to the criteria established by the Fair Labor Standards Act, 29 U.S.C. section 201. This exemption shall apply only during the time when the employee is actually standing by or on-call.

i.    Employees of contractors and subcontractors subject to the requirements of Division 2, Part 7, of the California Labor Code, for payment of prevailing wage when prevailing wage requires compensation greater than that required by this chapter.

j.    An employee for whom application of the requirements of this chapter is prohibited by state or federal law.

k.    An employee subject to a bona fide collective bargaining agreement where the waiver of the provisions of this chapter are set forth in clear and unambiguous terms in such an agreement.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.09 Retaliation and Discrimination Prohibited.

It shall be unlawful to retaliate or discriminate against any person on account of having claimed a violation of this chapter.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.10. Employee Complaints to the City.

a.    An employee who alleges violation of any provision of the requirements of this chapter may report such acts to the City. The City Manager may establish a procedure for receiving and investigating such complaints and take appropriate enforcement action.

b.    Any complaints received shall be treated as confidential matters to the extent permitted by law. Any complaints received and all investigation documents related thereto shall be deemed exempt from disclosure pursuant to California Government Code Sections 6254 and 6255.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.11. Enforcement.

a.    A person claiming violation of this chapter may bring an action in the Superior Court of the State of California against an employer and obtain the following remedies:

1.    Back pay for each day during which the employer failed to pay the compensation required by this chapter.

2.    Reinstatement and compensatory damages.

3.    For a willful violation of this chapter, a court may award as a penalty up to treble the amount of moneys to be paid as damages.

4.    Reasonable attorney’s fees and costs.

b.    Notwithstanding any provision of this chapter or any other ordinances to the contrary, no criminal penalties shall attach for any violation of this chapter.

c.    No remedy set forth in this chapter is intended to be exclusive or a prerequisite for asserting a claim for relief to enforce any rights hereunder in a court of law.

d.    No Liability of City. Claims or lawsuits against the City arising under this chapter are not authorized, nor shall the remedies provided in subsection (a) be awarded against the City. The City shall not be liable to any person or entity because of the City’s failure to notify an employer of the applicability of this chapter, the City’s failure to investigate or enforce violations of this chapter, or based upon another employer’s. failure to comply with this chapter.

e.    The City may terminate a service contract, financial assistance, or lease or facility agreement and pursue any other legal remedies available to the City, including debarment, for non-compliance with this chapter.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)

5-31.12 Effective Date.

This chapter shall apply to every City contract, lease, license, concession agreement, franchise agreement or agreement for financial aid with an employer entered into or amended on or after July 1, 2007.

(Sec. 2 (part), Ord. 06-019, eff. July. 1, 2007)