Article 1    Measure C As Adopted by City of Emeryville Electorate November 8, 2005

5-32.1.1    Minimum Requirements

5-32.1.2    Any City Costs to be Covered by Permit Fees

5-32.1.3    Definitions

5-32.1.4    Enforcement

5-32.1.5    Findings

Article 2    Repealed

Article 1.    Measure C As Adopted by City of Emeryville Electorate November 8, 2005

5-32.1.1 Minimum Requirements.

No corporation, entity or person may operate a large hotel (as defined in Section 5-32.1.3) without annually obtaining a permit from the City, which shall be granted upon a showing that the following conditions will be followed:

(a)    Minimum Wages. Large hotels shall ensure that employees receive compensation of at least the following:

(1)    Minimum Compensation. The minimum compensation for each employee shall be at least nine dollars ($9.00) per hour.

(2)    Minimum Average Compensation. The average compensation of all employees in the hotel during a calendar year shall be at least eleven dollars ($11.00) per hour.

(3)    Credit for Health Benefits. “Compensation” shall be defined herein as wages (or salary) and health benefits. If employer contributions for health benefits are not paid on an hourly basis but the hotel nonetheless wishes a credit for such payments, the hotel shall present data to the City concerning hours worked and health contributions made, and the City Manager or his designee shall estimate the value of such benefits on an hourly basis.

(4)    Inflation Adjustments. The above rates shall be upwardly adjusted annually, no later than March 1, in proportion to the increase during the preceding calendar year in the region’s Consumer Price Index published by the U.S. Bureau of Labor Statistics. No later than February 1 each year, the City shall distribute a notice reporting the amount of such increase to any person who has filed with the City a request for such notice.

(b)    Protection of Employees from Unjust Discharges When a New Employer Takes Over.

(1)    If there is a sale of the hotel or other change resulting in a new person or entity taking over as an employer at the hotel (such as subcontracting, subleasing, or replacement of subcontractor, lessee or sublessee), then the new employer shall retain all employees of the prior employer for at least ninety (90) calendar days unless there is reasonable and substantiated cause not to hire or to discharge such employee based on that employee’s performance or conduct. The fact that an employee previously enjoyed certain wages, benefits or working conditions does not provide cause for not employing him or her.

(2)    In the event of layoff during the first ninety (90) days of the new employer’s operation, the laid-off employee shall be entitled to reinstatement should any position open up at the hotel within the following twenty-four (24) months which the employee can perform. Upon reinstatement, such employee must be given a trial period of at least ninety (90) days during which he or she can only be discharged for cause as defined in subsection (b)(1) of this section.

(3)    A finding of cause for an employee’s discharge made in a grievance procedure established by collective bargaining agreement shall be binding under subsection (b)(1) of this section, and the term “cause” in subsection (b)(1) of this section shall be construed in accordance with judicial and arbitral precedent defining “just cause” for discharge.

(4)    The right to retention herein does not include the right to retain supervisory or management responsibilities.

(c)    Workload Standards for Room Cleaners. Employees working as room cleaners shall be paid at least time-and-a-half the minimum average compensation set forth above for all time worked in a day if required to clean rooms amounting to more than five thousand (5,000) square feet of floor space in an eight (8) hour workday. For any room cleaner working less than eight (8) full hours per day, this maximum floor space shall be prorated evenly according to the actual number of hours worked. When a room cleaner is assigned in an eight (8) hour workday to clean any combination of seven (7) or more checkout rooms or rooms with additional beds such as cots or rollaways, this maximum floor space shall be reduced by five hundred (500) square feet for each such checkout or additional bedroom over six (6).

(d)    Paid Leave for Jury Duty. Each large hotel shall ensure that employees are provided with paid leave for jury duty. The pay during such leave shall be at least the employee’s regular rate of pay as defined by the Fair Labor Standards Act.

(e)    Compliance with Enforcement Provisions. Hotel compliance with the enforcement provisions set forth in Section 5-32.1.4 shall also be a condition for a permit.

(Sec. 3 (part), Ord. 08-005, eff. Sep. 18, 2008)

5-32.1.2 Any City Costs to be Covered by Permit Fees.

Each large hotel shall pay a permit fee annually to the City reflecting its share of any City costs in enforcing this chapter. This share shall be based on each hotel’s portion of the total number of rooms at the hotels covered by this chapter, or based on such other formula as the City Council determines to be equitable. The Council by resolution shall set the initial permit fee based on the City Manager’s projection of the City’s likely costs, and then shall update such fee annually.

(Sec. 3 (part), Ord. 08-005, eff. Sep. 18, 2008)

5-32.1.3 Definitions.

The following definitions shall apply throughout this chapter:

(a)    A “large hotel” means any hospitality facility with more than fifty (50) guest rooms. A “hotel” includes not only the facility’s guest rooms and common areas but also any subcontracted or sublet restaurants connected thereto or operated in conjunction therewith.

(b)    “Employee” includes not only common law employees of the operator, but also persons regularly engaged on the premises in providing services to hotel guests as a contractor, subcontractor, tenant, subtenant, licensee or sublicensee, or as an employee thereof. Workers who are not common law employees of the operator shall not be deemed regularly engaged on the premises unless they spend more than five hours per week there for more than four weeks. The permittee shall remain ultimately liable for compliance with this article regardless of whether or not it is the common law employer of the employees. “Employee” does not include any managerial or administrative employees receiving more than fifty thousand dollars ($50,000) per year in wages, salary, bonus, commission or other compensation from the hotel.

(Sec. 3 (part), Ord. 08-005, eff. Sep. 18, 2008)

5-32.1.4 Enforcement.

(a)    If after notice and hearing the City Council finds a large hotel has violated its permit requirements, the Council shall revoke such permit or attach conditions to the renewal of such permit sufficient to remedy past violations and prevent future violations.

(b)    The City, any City resident or organization operating within the City, or any employee of a large hotel believing the hotel has violated any requirements of this chapter shall be entitled to bring an action in superior or municipal court for injunctive relief and to collect damages for all persons injured by the violation, and collect penalties for the City. Each workday during which the hotel is in violation of this chapter shall be deemed a separate violation for which the hotel shall be liable for a penalty of at least one hundred dollars ($100.00) per day and not more than one thousand dollars ($1,000.00) per day, the amount to be determined by the court. A prevailing plaintiff in such an action shall be entitled to recover from the hotel his expenses in pursuing the action, including reasonable attorney’s fees. The City shall not be liable under this article for any plaintiff’s damages or legal expenses. The remedies set forth herein are not exclusive of any other remedies available at law, and none is a prerequisite for pursuing another remedy.

(c)    No person may discharge or otherwise discriminate against any other person for making a complaint, participating in any of its proceedings, using any civil remedies to enforce his or her rights, or otherwise asserting his or her rights under this chapter.

(d)    Any waiver by an individual of any provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable, except that employees are not barred from entering into a written valid collective bargaining agreement waiving provisions of this chapter if such waiver is set forth in clear and unambiguous terms.

(e)    Each large hotel shall maintain for each employee a record of his or her name, pay rate and, if the hotel claims credit for health benefits, the sums paid by the hotel for the employee’s health benefits. By March 31 of each year, the hotel shall submit to the City a copy of such records for the prior year. Failure to provide a copy of such records within ten (10) days of the due date will result in a penalty of one hundred dollars ($100.00) per day.

(f)    Each large hotel shall give written notification to each current employee, and to each new employee at time of hire, of his or her rights under this chapter. The notification shall be in each language spoken by more than ten (10) employees.

(g)    Each large hotel in the City shall permit reasonable access to its workforce inside the hotel to authorized City representatives and any organization assisting employees in the hospitality industry. Such access may be used solely for the purpose of monitoring compliance with this chapter and investigating employee complaints of noncompliance. This access shall include the right of City representatives to inspect and copy payroll records, which information shall be used solely for the purpose of enforcing this article.

(h)    If any provision or application of this chapter is declared illegal, invalid or inoperative, in whole or in part, by any court of competent jurisdiction, the remaining provisions and portions thereof shall remain in full force or effect. The courts are hereby authorized to reform the provisions of this chapter in order to preserve the maximum permissible effect thereof.

(Sec. 3 (part), Ord. 08-005, eff. Sep. 18, 2008)

5-32.1.5 Findings.

The people of the City of Emeryville believe it is proper to regulate employment conditions at large hotels first rather than trying to regulate all employers because they believe that (a) large hotels are better able to afford the proposed conditions than other kinds of employers; (b) many large hotels in the Bay Area are already meeting the employment conditions required by this article, unlike the situation in other industries; (c) large hotels provide jobs similar to the janitorial jobs already protected by a similar State law on worker retention, Labor Code Sections 1060 through 1065; and (d) large hotels are generally less likely to respond to such regulation by closing or reducing employment than other kinds of businesses, which can more readily move jobs offshore or to other locations, as large hotels wish to be here because of our City’s location. Each of these factors alone is sufficient to warrant adoption of this article.

(Sec. 3 (part), Ord. 08-005, eff. Sep. 18, 2008)

Article 2.    Limitations During Investigation of Administrative Complaints

Repealed by Sec. 2, Ord. 08-005, eff. Sep. 18, 2008.