Chapter 7.35
HAZARD PAY FOR ESSENTIAL GROCERY WORKERS

Sections:

7.35.010    Emergency need.

7.35.020    Definitions.

7.35.030    Payment of hazard pay to covered employees.

7.35.040    Credit for employer-initiated hazard pay.

7.35.050    Paid time off for vaccination.

7.35.060    Waiver.

7.35.070    Prohibitions.

7.35.080    Enforcement.

7.35.090    Regulations.

7.35.100    Conflict.

7.35.110    Notice.

Code reviser’s note: Per Section 16 of Ord. 786, this chapter shall expire on July 7, 2021, unless repealed, extended, or replaced by an affirmative vote of the city council.

7.35.010 Emergency need.

In accordance with Section 36937 of the California Government Code, the city council finds and declares that adoption of this chapter is necessary for preserving the public peace, health, safety, or welfare for the following reasons:

A.    The COVID-19 pandemic has led to the current state of emergency in California.

B.    The virus is spreading rapidly across the region with many clusters arising within retail stores. Grocery stores remain a critical piece of infrastructure in our fight against the COVID-19 virus and in protecting the food supply chain.

C.    Large grocery and drugstores are the primary points of distribution for food and other daily necessities for the residents of the city of Millbrae and are therefore essential to the vitality of our community.

D.    Turnover, inability to pay for housing and increased childcare costs as a result of school closures and other necessities could become an immediate problem for certain grocery workers if they are not given relief.

E.    To protect the food supply chain and the public health and safety, the city of Millbrae must take steps to guard against turnover and ensure that large grocery stores in Millbrae have well-trained, consistent and stable staffing. (Ord. 786, § 2).

7.35.020 Definitions.

The definitions set forth in this section shall govern the construction and meaning of the terms used in this chapter:

A.    “Base wage” means the hourly wage paid to covered employees as of the effective date of the ordinance codified in this chapter less hazard pay owed under this chapter or any other premium hourly rate already paid to compensate covered employees for working during the pandemic (referred to herein as “employer-initiated hazard pay”).

B.    “City” means the city of Millbrae.

C.    “Covered employee” means any individual who works in a grocery store or drugstore on either a full-time or part-time basis, and whose work exposes them to contact with store patrons.

D.    “Covered employer” means any person who (1) directly or indirectly or through an agent or any other person owns or operates a grocery store or a drugstore and employs or exercises control over the wages, hours or working conditions of any covered employee; and (2) employs seven hundred fifty or more employees nationwide regardless of where those employees are employed. To determine the number of employees employed by a grocery store or drugstore, the calculation shall be based upon:

1.    The actual number of employees who worked for compensation during the two workweeks preceding the effective date of this chapter; and

2.    All employees who worked for compensation shall be counted, including but not limited to:

a.    Employees who are not covered by this chapter;

b.    Employees who worked within the geographic limits of the city;

c.    Employees who worked outside the geographic limits of the city; and

d.    Employees who worked in full-time employment, part-time employment, joint employment, temporary employment, or through the services of a temporary services or staffing agency or similar entity.

E.    “Employer-initiated hazard pay” means a premium hourly rate to compensate covered employees for the hardships and/or risks associated with working during the COVID-19 pandemic. If a covered employer pays such employer-initiated hazard pay on a flat rate basis, the premium hourly rate is derived by dividing the flat rate payment for a workweek by the number of hours worked in the workweek.

F.    “Hazard pay” means an additional five dollars per hour wage bonus in addition to each covered employee’s base wage or holiday premium wage for each hour worked within the city.

G.    “Holiday premium” means the hourly wage paid to covered employees for performing work during a holiday or holiday season.

H.    “Hours worked” means the time during which a covered employee is subject to the control of a covered employer, including all the time the employee is suffered or permitted to work, and on-call.

I.    “Drugstore” means a store that devotes seventy percent or more of its business to retailing a general range of drugs, pharmaceuticals, cosmetics and related products, including food products, which may be fresh or packaged. There is a rebuttable presumption that if a store receives seventy percent or more revenue from retailing a general range of drugs, pharmaceuticals, cosmetics and related products, including food products, then it qualifies as a drugstore.

J.    “Grocery store” means a retail store that is located within the geographic limits of the city, and that sells primarily household foodstuffs for off-site consumption, including the sale of fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked foods, or prepared foods. Other household supplies or other products shall be secondary to the primary purpose of food sales. For the purposes of this chapter, “grocery store” also means a retail store of any kind located within the geographic limits of the city that devotes ten percent or more of its interior space to the sale of household foodstuffs for off-site consumption, including the sale of fresh produce, meats, poultry, fish, deli products, dairy products, canned foods, dry foods, beverages, baked foods, or prepared foods.

K.    “Person” means any individual, corporation, partnership, limited partnership, limited liability partnership, limited liability company, business trust, estate, trust, association, joint venture, agency, instrumentality, or any other legal or commercial entity, whether domestic or foreign. (Ord. 786, § 4).

7.35.030 Payment of hazard pay to covered employees.

A.    Hazard Pay. Covered employers shall pay covered employees a wage of no less than the premium hourly rate set under the authority of this chapter. The premium hourly rate for each covered employee shall be an additional five dollars per hour for all hours worked at a grocery store or drugstore on top of the covered employee’s base wage or holiday premium, whichever applies at the time of hours worked. The hazard pay rate shall not include compensation already owed to covered employees, holiday premium rates, gratuities, service charge distributions, or other bonuses.

B.    Credits. Covered employers providing employer-initiated hazard pay will be credited for doing so in accordance with MMC 7.35.040. (Ord. 786, § 5).

7.35.040 Credit for employer-initiated hazard pay.

A.    Employer-initiated hazard pay shall be credited against the five dollars per hour for the hourly amount paid to each covered employee (e.g., a covered employer offering two dollars per hour in employer-initiated hazard pay owes an additional three dollars per hour in hazard pay per this chapter). To receive credit for paying a covered employee employer-initiated hazard pay, a covered employer must demonstrate that, as of the effective date of this chapter and in any subsequent covered workweeks, the covered employer paid such employer-initiated hazard pay to the covered employee. No covered employer shall be credited prospectively for any past payments. No covered employer shall be credited for any hourly premiums already owed to covered employees, such as, but not limited to, holiday premiums. Nothing herein shall be interpreted to prohibit any employer from paying more than five dollars per hour in hazard pay.

B.    Covered employers must, upon request, immediately provide the following to the city manager’s office to receive credit for employer-initiated hazard pay:

1.    A copy of the employer’s hazard pay policy; and

2.    A statement, provided under penalty of perjury, explaining covered employees’ hourly base wages, hourly holiday premiums, hourly employer-initiated hazard pay, and any other wage bonuses received during the last twelve months; and

3.    For any covered employee(s) as to whom a covered employer seeks credit for employer-initiated hazard pay, documentation reflecting that such payments were made, for each hour claimed; and

4.    Documentation that allows the city to review for compliance by assessing wages for the past twelve months and that is itemized in such a way that the city can understand a covered employee’s base wage distinguished from holiday premiums and other bonuses or pay increases that are separate and distinct from employer-initiated hazard pay.

a.    The following constitutes acceptable evidence of employer-initiated hazard pay described in subsection (B)(4) of this section: a spreadsheet, of all covered employees and their wages for each pay period for the last twelve months, that allows the city to distinguish base wage from holiday pay and other bonuses or pay increases that are separate and distinct from employer-initiated hazard pay.

b.    Production of the evidence described in subsection (B)(4)(a) of this section does not exempt any covered employer from maintaining, and providing access to, the underlying payroll records described in this section.

C.    Any offer of proof under subsection (B)(4) of this section shall be accompanied by a written acknowledgment that it was submitted under penalty of perjury. (Ord. 786, § 6).

7.35.050 Paid time off for vaccination.

Covered employers shall provide covered employees up to four hours of paid time off to compensate covered employees for the time required to obtain COVID-19 vaccinations. (Ord. 786, § 7).

7.35.060 Waiver.

The provisions of this chapter may not be waived by agreement between an individual covered employee and a covered employer. All the provisions of this chapter, or any part thereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is explicitly set forth in such agreement in clear and unambiguous terms. (Ord. 786, § 8).

7.35.070 Prohibitions.

It shall be unlawful for a covered employer or any other person to interfere with, restrain or deny the existence of, or the attempt to exercise, any rights protected under this chapter. Employers shall not take retaliatory action or discriminate against any employee or former employee because the individual has exercised rights protected under this chapter. Such rights include, but are not limited to, the right to request hazard pay pursuant to this chapter; the right to file a complaint with the city or inform any person about an employer’s alleged violation of this chapter; the right to participate in an investigation, hearing or proceeding or cooperate with or assist the city in its investigations of alleged violations of this chapter; and the right to inform any person of their rights under this chapter. Protections of this chapter shall apply to any employee who mistakenly, but in good faith, alleges noncompliance with this chapter. Taking adverse action against an employee, including lowering an employee’s base wage or holiday premium wages or reducing work hours, within ninety days of the employee’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. (Ord. 786, § 9).

7.35.080 Enforcement.

A.    The failure of any person to comply with any requirement imposed under this chapter is a violation of city law and may be enforced through any of the remedies provided in Chapter 1.05 MMC.

B.    Any covered grocery or drugstore worker that suffers financial injury as a result of a violation of this chapter, or is the subject of prohibited retaliation under MMC 7.35.060, may bring a civil action in a court of competent jurisdiction against the covered employer or other person violating this chapter and, upon prevailing, may be awarded reasonable attorney fees and costs and such legal or equitable relief as may be appropriate to remedy the violation including, without limitation: the payment of any unpaid compensation plus interest due to the person and liquidated damages in an additional amount of up to twice the unpaid compensation; and a reasonable penalty payable to any aggrieved party if the aggrieved party was subject to prohibited retaliation. (Ord. 786, § 10).

7.35.090 Regulations.

The city manager’s office may promulgate and enforce rules and regulations, and issue determinations and interpretations, consistent with and necessary for the implementation of this chapter. Such rules and regulations, determinations, and interpretations shall have the force of law and may be relied upon by employers, employees, and other persons to determine their rights and responsibilities under this chapter. (Ord. 786, § 11).

7.35.100 Conflict.

Nothing in this chapter shall be interpreted or applied to create any power or duty in conflict with any federal or state law. The term “conflict” means a conflict that is preemptive under federal or state law. (Ord. 786, § 12).

7.35.110 Notice.

A.    Covered employers shall provide covered grocery or drugstore workers with a written notice of rights established by this chapter. The notice of rights shall be in a form and manner sufficient to inform grocery or drugstore workers of their rights under this chapter. The notice of rights shall provide information on:

1.    The right to premium pay guaranteed by this chapter;

2.    The right to be protected from retaliation for exercising in good faith the rights afforded by this chapter; and

3.    The right to bring a civil action for a violation of the requirements of this chapter, including a covered employer’s denial of premium pay as required by this chapter and a covered employer or other person’s retaliation against a covered grocery or drugstore worker or other person for asserting the right to premium pay or otherwise engaging in an activity protected by this chapter.

B.    Covered employers shall provide the notice of rights required by posting a written notice of rights in a location of the grocery or drugstore utilized by employees for breaks, and in an electronic format that is readily accessible to the grocery or drugstore workers. The notice of rights shall be made available to the grocery or drugstore workers via smart-phone application or an online web portal, in English and any language that the covered employer knows or has reason to know is the primary language of the grocery or drugstore worker(s). (Ord. 786, § 13).