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HomeMy WebLinkAbout3A Public CommentConsolidated Agenda Correspondence Received prior to 03/11/2021 at 2:30 p.m. Batch Four 3 John Paul Maier Subject: RE: *NEW SUBMISSION* Submit Public Comment to the City of Palm Springs From: City of Palm Springs <palmspringsca@enotify.visioninternet.com> Sent: Thursday, March 11, 20212:39 PM To: City Clerk <CityClerk@palmspringsca.gov>; Anthony Mejia <Anthony.Mejia@palmspringsca.gov> Subject: *NEW SUBMISSION* Submit Public Comment to the City of Palm Springs Full Name/Nombre Troy Morgan City of Residence/Ciudad de residencia Hemet Phone (optional) /Telefono (opcional) 9516639097 Email (optional/opcional) tmorgan1987@gmail.com Your Comments/Sus comentarios This has to do with the $4 an hour hero Pay. I am your Palm Springs Stater Brothers meat manager. All I can say is I appreciate it but we don't need it The only mandate I need the city council upon springs to is to give out tickets for people that wear no mask inside a store protect us $4 an hour increase in wages means less hours for everybody to go around people get transferred out of your Palm Springs Stater Brothers other businesses in the community will shut down they can't afford $4 1 urge the city council to reconsider and vote no on hero Pay $4 thank you Troy Morgan meat manager Stater Brothers markets Palm Springs Thank you, City of Palm Springs This is an automated message generated by the Vision Content Management System'"". Please do not reply directly to this email. ,i k 1 0 J MORRISON I FOERSTER February 24, 2021 Via Email The Honorable Christy Holstege Office of the Mayor and City Council 3200 East Tahquitz Canyon Way Palm Springs, California 92262 425 MARKET STREET SAN FRANCISCO CALIFORNIA 94105-2482 TELEPHONE: 415.268.7000 FACSIMILE: 415.268.7522 WWW.MOFO.COM MORRISON h FCIERSTER LLP BEIJING, BERLIN, BOSTON, BRUSSELS, DENVER, HDNG BONG, LONDON, LOS ANGELES, NEW YGRK, PALCI ALTO, SIN DIEGG, SIN PRANCISC.G, SHANGHAI, S INGAPDRE, TOKYO, WASHINGTON, D.C. Writer's Direct Contact +1 (415) 268.6358 WTarantino@mofo.com Re: Premium Pay for Grocery and Retail Pharmacy Workers Ordinance Dear Council Members: We write on behalf of our client, the California Grocers Association (the "CGA"), regarding the proposed Premium Pay for Grocery and Retail Pharmacy Workers Ordinance (the "Ordinance") that singles out a specific group of grocery stores (i.e., those companies with 300+ employees nationally and more than 15 employees per grocery store in the City of Palm Springs) and requires them to implement mandatory pay increases. The City Council's rushed consideration of this Ordinance would, if passed, lead to the enactment of an unlawful, interest -group driven ordinance that ignores large groups of essential retail workers. It will compel employers to spend less on worker and public health protections in order to avoid losses that could lead to closures. In addition, the Ordinance, in its proposed form, interferes with the collective -bargaining process protected by the National Labor Relations Act (the "NLRA"), and unduly targets certain grocers in violation of their constitutional equal protection rights. We respectfully request that the City Council reject the Ordinance as these defects are incurable. The Ordinance fails to address any issue affecting frontline workers' health and safety. The purported purpose of the Ordinance is to "protect and promote the public health, safety, and welfare" during the Covid-19 pandemic. (§ 5.87.005.) The Ordinance is devoid of any requirements related to the health and safety of frontline workers or the general public and instead imposes costly burdens on certain grocers by requiring them to provide an additional Four Dollars ($4.00) per hour wage bonus ("Premium Pay"). (§ 5.87.050.) A wage increase does not play any role in mitigating the risks of exposure to COVID-19, nor is there any suggestion that there is any risk of interruption to the food supply absent an increase in wages. If anything, the Ordinance could increase those risks, as it may divert funds that otherwise would have been available for grocers to continue their investments in public health measures recognized to be effective: enhancing sanitation and cleaning protocols, r sf-4435640 1;+L L. MORRISON I FOERSTER Hon. Christy Holstege February 24, 2021 Page Two limiting store capacity, expanding online orders and curbside pickup service, and increasing spacing and social distancing requirements. The Ordinance also inexplicably chooses winners and losers among frontline workers in mandating Premium Pay. The Ordinance defines "grocery store" as a "store that devotes seventy percent (70%) or more of its business to retailing a general range of food products, which may be fresh or packaged, or a store that has at least fifteen thousand square feet (15,00 so of floor space dedicated to retailing a general range of food products." (§ 5.87.020.) Other retail and health care workers are ignored, despite the fact that those same workers have been reporting to work since March. The Ordinance grants Premium Pay for select, employees while ignoring frontline employees of other generic retailers and other frontline workers in Palm Springs that face identical, if not greater, risks. The Ordinance is unlawful By mandating Premium Pay, the Ordinance would improperly insert the City of Palm Springs into the middle of the collective bargaining process protected by the National Labor Relations Act. The Ordinance suggests that the certain grocery workers require this "relief' on an emergency basis, as "establishing an immediate requirement... protects public health, supports stable incomes, and promoted job retention." ("City Attorney Summary"). Palm Springs employers and workers in many industries have been faced with these issues since March 2020. Grocers have continued to operate, providing food and household items to protect public health and safety. In light of the widespread decrease in economic activity, there is also no reason to believe that grocery workers are at any particular risk of leaving their jobs, but even if there were such a risk, grocers would have every incentive to increase the workers' compensation or otherwise bargain with them to improve retention. The Ordinance would interfere with this process that Congress intended to be left to be controlled by the free -play of economic forces. Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). Such ordinances have been found to be preempted by the NLRA. For example, in Chamber of Commerce of U.S. v. Bragdon, the Ninth Circuit Court of Appeals held as preempted an ordinance mandating employers to pay a predetermined wage scale to employees on certain private industrial construction projects. 64 F.3d 497 (9th Cir. 1995). The ordinance's purported goals included "promot[ing] safety and higher quality of construction in large industrial projects" and "maintain[ing] and improv[ing] the standard of living of construction workers, and thereby improv[ing] the economy as a whole." Id. at 503. The Ninth Circuit recognized that this ordinance "differ[ed] from the [a locality's] usual exercise of police power, which normally seeks to assure that a minimum wage is paid to all employees within the county to avoid unduly imposing on public services such as welfare or health services." Id. at 503. Instead, the ordinance was an "economic weapon" meant to influence the terms of the employers' and their workers' contract. Id. at 501-04. The Ninth Circuit explained that the ordinance would "redirect efforts of employees not to sf-4435640 MORRISON I FOERSTER Hon. Christy Holstege February 24, 2021 Page Three bargain with employers, but instead, to seek to set specialized minimum wage and benefit packages with political bodies," thereby substituting a "free -play of economic forces that was intended by the NLRA" with a "free -play of political forces." Id. at 504. The same is true of this Ordinance. While the City has the power to enact ordinances to further the health and safety of its citizens, it is prohibited from interfering directly in employers' and their employees' bargaining process by arbitrarily forcing certain grocers to provide Premium Pay that is both unrelated to minimum labor standards, or the health and safety of the workers and the general public. The Ordinance also violates the U.S. Constitution and California Constitution's Equal Protection Clauses (the "Equal Protection Clauses"). The Equal Protection Clauses provide for "equal protections of the laws." U.S. Const. amend. XIV, § 1; Cal. Const. art I, § 7(a). This guarantee is "essentially a direction that all persons similarly situated should be treated alike" and "secure[s] every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). No law may draw classifications that do not "rationally further a legitimate state interest." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). By requiring that any classification "bear a rational relationship to an independent and legitimate legislative end, [courts] ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by law." Romer v. Evans, 517 U.S. 620, 633 (1996). As discussed above, the Ordinance here unfairly targets traditional grocery companies and arbitrarily subjects certain 300-employee grocers to the Premium Pay mandate while sparing other generic retailers who also employ frontline workers. See Fowler Packing Co., Inc. v. Lanier, 844 F.3d 809, 815 (9th Cir. 2016) ("[L]egislatures may not draw lines for the purpose of arbitrarily excluding individuals," even to "protect" those favored groups' "expectations."); Hays v. Wood, 25 Cal. 3d 772, 786-87 (1979) ("[N]othing opens the door to arbitrary action so effectively as to allow [state] officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected."). Moreover, absent from the Ordinance is any requirement that would actually address its stated purpose of promoting the public's health and safety. Put simply, there is a disconnect between the Ordinance's reach and its stated purpose, making it unlawful and violating the equal protection rights of CGA's members. CGA disagrees with the Council's characterization of the Ordinance as an "urgency ordinance." There is nothing in the Ordinance that is required for immediate preservation of the public peace, health and safety. (§ 5.87.005.) Even if an urgency ordinance passes, there is no requirement that an urgency ordinance become effective immediately on passage. As sf-4435640 MORRISON I FOERSTER Hon. Christy Holstege February 24, 2021 Page Four this Council has done many times before, an urgency ordinance can become effective at a set date in the future. Finally, in light of emerging vaccination programs for essential workers, stores' increasing ability to protect patrons and workers from infection using distancing, curbside pickup, and other measures, we strongly encourage the City to set an alternate deadline for expiration of hazard pay ordinance (i.e., 90 days) so that it can be revisited by the Council in light of the rapidly changing pandemic conditions. For all of the reasons discussed above, we respectfully request that the City Council reject the Ordinance. Sincerely, IA William F. Tarantino cc: Honorable Members of the Palm Springs City Council Grace Elena Garner Dennis Woods Geoff Kors Lisa Middleton sf-4435640 John Paul Maier Subject: RE: Hero Pay From: Jim Kling & Dave Fletcher <def.ilk@gmail.com> Sent: Thursday, March 11, 2021 11:23 AM To: Anthony Mejia <Anthony.Meiia@palmspringsca.gov> Subject: Hero Pay I have concerns about ordering supermarkets and others to increase employee pay. I feel the idea is miss guided and not in the best interest of the city. Please reconsider not to approve this ordnance. Jim Kling $ 4i,a rA NO. � � March 11, 2021 The Honorable Christy Holstege Mayor, City of Palm Springs 3200 Tahquitz Canyon Way Palm Springs, CA 92262 RE: Grocery Worker Pay Dear Mayor Holstege, On behalf of Palm Springs grocers, I write to ask the Council to not move forward with the proposed grocery worker premium pay ordinance given the numerous negative consequences to grocery workers, neighborhoods and the grocery industry. Based on the consequences experienced in other jurisdictions with similar ordinances, we must oppose the ordinance for both policy and legal reasons. We agree that grocery workers serve a vital and essential role during the pandemic. They have worked tirelessly to keep stores open for consumers, allowing our communities to have uninterrupted access to food and medications. To protect our employees, grocery stores were among the first to implement numerous safety protocols, including providing PPE and masks, performing wellness checks, enhancing sanitation and cleaning, limiting store capacity, and instituting social distance requirements, among other actions. On top of increased safety measures, grocery employees have also received unprecedented amounts of supplemental paid leave to care for themselves and their families in addition to already existing leave benefits. Grocers have also provided employees additional pay and benefits throughout the pandemic in various forms, including hourly and bonus pay, along with significant discounts and complimentary groceries. All of these safety efforts and additional benefits clearly demonstrate grocers' dedication and appreciation for their employees. Most importantly the industry has been fierce advocates for grocery workers to be prioritized for vaccinations. This is evident now that your county is now considering grocery workers a priority and they are currently receiving the vaccine. Unfortunately, the Grocery Worker Premium Pay ordinance would mandate grocery stores provide additional pay beyond what is economically feasible, which would severely impact store viability and result in increased prices for groceries, limited operating hours, reduced hours for workers, fewer workers per store, and most concerning, possible store closures. These negative impacts from the ordinance would be felt most acutely by independent grocers, ethnic format stores, and stores serving low-income neighborhoods. The Cities of Los Angeles, Long Beach and Seattle, who have passed a similar ordinance, have already suffered the permanent loss of several full -service grocery stores as direct result. We request the City of Palm Springs perform an economic impact report to understand the true impacts of this policy. If you choose not to understand specific impacts for Palm Springs, then we refer you to the economic impact report from the City of Los Angeles Legislative Analyst Office. This report makes it clear that the impact of this policy will severely impact workers, consumers, and grocery stores. In its own words the Los Angeles City Legislative Analyst clearly states that grocery "companies would be required to take action to reduce costs or increase revenue as the labor increase will eliminate all current profit margin." The report recognizes that "affected companies could raise prices to counteract the additional wage cost." This type of ordinance would put "more pressure on struggling stores (especially independent grocers) which could lead to store closures" and that "the closure of stores could lead to an increase in 'food deserts' that lack access to fresh groceries." These are all scenarios we know everyone in the city wants to avoid, especially during a pandemic. This is why we are asking the Council to not move forward with this policy and, instead, focus on making sure all grocery workers are provided the vaccine. CALIFORNIA GROCERS ASSOCIATION 1 1005 12th Street, Suite 200, Sacrame4rto, CA 95814 P: (916) 448-3545 1 F: (916) 448-2793 1 www.cagrocers.com March 11, 2021 PAGE 2 Specific to ordinance language, there are numerous policy and legal issues which unnecessarily single out the grocery industry and create significant burdens. The ordinance fails to recognize the current efforts grocers are making to support their employees and requires grocers add significant costs on to existing employee benefit programs. Furthermore, passing this ordinance improperly inserts the city into employee -employer contractual relationships. The ordinance also ignores other essential workers, including city employees, that have similar interaction with the public. Taken in whole, this ordinance is clearly intended to impact only specific stores within a single industry and fails to recognize the contributions of all essential workers. Based on language specifics, this ordinance misses a genuine effort to promote the health, safety and welfare of the public. Emergency passage of the ordinance also ignores any reasonable effort for compliance by impacted stores, as several grocery stores will be operating at the time of passage. By implementing the ordinance immediately there is literally no time to communicate to employees, post notices, adjust payroll processes, and other necessary steps as required by California law. Coupled with the varied enforcement mechanisms and significant remedies outlined, the passage of this ordinance would put stores into immediate jeopardy. This scenario is yet another negative consequence resulting from the lack of outreach to grocers and the grocery industry to understand real world impacts. Grocery workers have demonstrated exemplary effort to keep grocery stores open for Palm Springs. This why the grocery industry has provided significant safety measures and historic levels of benefits that include additional pay and bonuses. It is also why vaccinating grocery workers has been our first priority. Unfortunately, this ordinance is a significant overreach of policy and jurisdictional control. This will result in negative consequences for workers and consumers that will only be compounded by the pandemic. We respectfully implore the Council to not move forward with the grocery worker pay ordinance at this time. We encourage you to recognize and understand the impacts of this ordinance on workers and the community by accepting our invitation to work cooperatively with Palm Springs grocers. If Council must bring the ordinance forward for a vote at this time we ask you to oppose its passage. CGA is submitting additional information from our legal counsel for your consideration. Thank you for your consideration and we look forward to being able to combat the pandemic in partnership with the City of Palm Springs. Sincerely, *__� Z Timothy amen California Grocers As i on CC: Members, Palm Springs City Council City Clerk, City of Palm Springs CALIFORNIA GROCERS ASSOCIATION 1 1005 12th Street, Suite 200, Sacramento, CA 95814 P: (916) 448-3545 1 F: (916) 448-2793 1 www.cagrocers.com John Paul Maier Subject: RE: Hero pay -----Original Message ----- From: Maripet Galang <maripetgalang@yahoo.com> Sent: Thursday, March 11, 2021 12:47 PM To: City Clerk <CityClerk@palmspringsca.gov> Subject: Hero pay I have been an employee of Ralphs for the past 15 years and since the pandemic started we have been working and even got sick for 2 months. I think we deserve to get the hero pay due to the fact that our company is getting greedy all they want is SALES and not worry about their employees. OUR EMPLOYER OWES THAT TO US!I! We have been working so hard and even work late nights and WE DESERVE TO GET OUR HERO PAY!!! Sent from my iPhone John Paul Maier Subject: RE: Discussion of Establishing "Hero Pay" Ordinance for Front -Line Grocery Employees From: Mark Ostoich<Mark.Ostoich@greshamsavage.com> Sent: Thursday, March 11, 2021 12:44 PM To: City Clerk <CityClerk@palmspringsca.gov> Cc: David Ready <David. Ready@ pal mspringsca.gov>; 'Jeff. Ballinger@ bbklaw.com' <Jeff.Ballinger@bbklaw.com>; Mark Ostoich<Mark.Ostoich@greshamsavase.com> Subject: Discussion of Establishing "Hero Pay" Ordinance for Front -Line Grocery Employees 4 Please enter this letter in the record of the administrative proceedings for Agenda Item 3.A at the City Council meeting tonight. Please also distribute copies of the letter to the City Attorney, the City Manager and each member of the City Council. Thank you, Mark Ostoich Mark Ostoich Principal Shareholder Gresham Savage Nolan & Tilden, PC 550 East Hospitality Lane, Suite 300 San Bernardino, CA 92408-4205 Office: (909) 890-4499 Ext. 1704 Fax: (909) 890-9690 www.GreshamSavage.com mark.ostoichCabgreshamsavage.com 1. Privileged and Confidential Communication. The information contained in this email and any attachments may be confidential or subject to the attorney client privilege or attorney work product doctrine. If you are not the intended recipient of this communication, you may not use, disclose, print, copy or disseminate the same. If you have received this in error, please notify the sender and destroy all copies of this message. 2. Notice re Tax Advice. Any tax advice contained in this email, including any attachments, is not intended or written to be used, and cannot be used, by you or any other recipient for the purpose of (a) avoiding penalties that may otherwise be imposed by the IRS, or (b) supporting, promoting, marketing, or recommending any transaction or matter to any third party. 3. Transmission of Viruses. Although this communication, and any attached documents or files, are believed to be free of any virus or other defect, it is the responsibility of the recipient to ensure that it is virus free, and the sender does not accept any responsibility for any loss or damage arising in any way from its use. 4. Security of Email. Electronic mail is sent over the public internet and may not be secure. Thus, we cannot guarantee the privacy or confidentiality of such information. MARKS A. OSTOICH (909) 890-4499 P.O. Box 12118 San Bernardino, CA 92423-2118 March 11, 2021 VIA E-MAIL — citvclerkCa Dalmsnrinvsca.¢ov Mayor and Members of the City Council c/o City Clerk City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 Re: Discussion of Establishing "Hero Pay" Ordinance for Front -Line Grocery Employees Honorable Mayor and Members of the City Council: Thank you for the opportunity to again address you regarding this important matter. Please consider this letter as a supplement to my February 25, 2021 letter to you. At this time, the proposed Ordinance is directed toward retail grocery stores. However, your Staff Report mentions the need for further discussion of other categories of workers that should be considered, including restaurant workers. I am opposed to the adoption of any ordinance that purports to govern pay to restaurant workers. In any event, I want to again urge you to refrain from adopting the proposed Ordinance until you comply with the California Environmental Quality Act. In that regard, Section 4 of the proposed Ordinance states that, "The City Council determines that the adoption of this Urgency Ordinance is exempt from environmental review under the California Environmental Quality Act ("CEQA') pursuant to the following provisions of the CEQA Guidelines, 14 California Code of Regulations, Chapter 3: this Urgency Ordinance is exempt under CEQA Guidelines Section 15378(b)(5) in that it is not a "project" under CEQA, and will not result in direct or indirect physical changes in the environment." Recently, Kroger Co. announced the closure of two Long Beach grocery stores in response to adoption of the Hero Pay Ordinance by the City of Long Beach, as well as three Los Angeles grocery stores in response to adoption of the Hero pay Ordinance by the County of Los Angeles and the City of Los Angeles. The latter closures were reported yesterday in the Business section of the Los Angeles Times. Your Staff Report acknowledges on page 5 that, on February 1, 2021, the Los Angeles Times reported that Kroger Co. would close two stores in Long Beach in response to the City's adoption of a "Hero Pay Ordinance". 002D-M-4038647.1 MARK A. OSTOICH Mayor and Members of the City Council City of Palm Springs March 11, 2021 Page 2 Your acknowledgment of the Long Beach closures, along with the above -referenced Los Angeles Times article regarding the Los Angeles closures, create a fair argument that retail grocery stores will close in response to adoption of the proposed Hero Pay Ordinance and as a result, buildings will be shuttered and physical deterioration and blighting will occur. In addition, when store closures occur, traffic patterns will change as shoppers drive to stores that remain open, including stores in other jurisdictions, creating additional traffic impacts that do not now exist. In view of the foregoing, the proposed Hero Pay Ordinance is a "project" under CEQA. You cannot ignore this and act to adopt the proposed Ordinance without first studying the impacts that the project will have on the environment. I am requesting that the City Clerk place this letter in the Administrative Record of these proceedings. Very truly yours, Mark A. Ostoich MAO/pmj cc: David H. Ready, City Manager (via e-mail - David.Ready@palmspringsca.gov) Jeffrey S. Ballinger, City Attorney (via e-mail - Jeff.Ballinger@bbklaw.com) 00204M-4038(A7.1 Consolidated Agenda Correspondence Received prior to 03/11/2021 at 10:00 a.m. Batch Three John Paul Maier Subject: RE: Hero Pay - No From: jasperlp3@aol.com <jasperip3@aol.com> Sent: Thursday, March 11, 2021 8:00 AM To: City Clerk <CityClerk@palmspringsca.gov> Subject: Hero Pay - No E I am requesting that the City Council vote No to Hero Pay for grocery store employees today. Although these workers are hard working and very deserving, this measure singles out a specific occupation when there are many many other front line workers in other industries who are also very deserving. In addition it is very likely that prices at our local stores will rise effecting members of all economic groups, many who are struggling as it is without jobs at all. Please vote No. John Ryan 2701 Mesquite H42 Palm Springs, CA 92264 562-228-3448