HomeMy WebLinkAbout5B OCRCITY COUNCIL STAFF REPORT
DATE: FEBRUARY 25, 2021 NEW BUSINESS
SUBJECT: DISCUSSION OF ESTABLISHING "HERO PAY" ORDINANCE FOR
FRONT-LINE GROCERY AND RETAIL PHARMACY EMPLOYEES
FROM: David H. Ready, City Manager
BY: Jeffrey Ballinger, City Attorney
SUMMARY
Due to the specific impacts to grocery and retail pharmacy workers during the COVID-
19 pandemic, the City Council has requested consideration of a draft urgency ordinance
and corresponding regular ordinance, both of which would require grocery and retail
pharmacy stores with up to 300 employees nationally and at least 15 employees per
location in Palm Springs to provide premium pay of an additional $4.00 per hour to their
workers in Palm Springs for at least 120 days.
RECOMMENDATION:
1. Discuss and consider a draft urgency ordinance establishing "Hero Pay" for front-
line grocery and retail pharmacy employees.
2. Provide direction to Staff as appropriate.
BACKGROUND:
Since March of 2020, the COVID-19 pandemic has dramatically impacted Palm Springs
citizens, business owners, employees, and visitors. In April 2020, the City adopted
additional protections for grocery and retail pharmacy workers and customers, including
regulations requiring face coverings and social distancing. The City has been at the
forefront of implementing emergency protections throughout the pandemic, in order to
protect the health of the public, by adopting one of the first stay-at-home orders in the
state, and additional requirements including face mask coverings and a curfew.
The global health pandemic has emphasized the importance of workers in industries now
highlighted as essential, including front-line grocery and retail pharmacy workers. Due to
the virus, millions of frontline grocery and retail pharmacy workers nationwide have had to
face new job-related hazards not previously considered especially dangerous. In
September 2020, Riverside County Public Health Director Dr. Kim Saruwatari reported
that the highest number of COVID-19 outbreaks in the region between July and
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February 25, 2021 --Page 2
Hero Pay Ordinance
September were reported to stem from grocery stores, with 48 reported outbreaks. The
data show the outbreaks impacted both store employees and customers. In a September
29, 2020 Desert Sun article, it was reported that the highest number of outbreaks in the
beginning of September were reported in retail and grocery stores. This, while grocery
stores across the country have seen record profits. The Brookings Institute found that top
retail companies had a 39% increase in profit, averaging an extra $16.9 billion in 2020.
(https://www.freep.com/story/news/local/michigan/2020/12/04/kroger-walmart-amazon-
profits-covid-19-pandemic/6458910002/)
Due to these shifting emergency circumstances, at the beginning of the pandemic, a
number of grocery companies initially provided extra COVID-19 related compensation to
their workers. This bonus, commonly known as "Hero Pay", often was implemented as a
temporary hourly wage increase or a one-off bonus for essential workers.
However, as the impacts of the pandemic subsided in June, many retail companies ended
their temporary wage increase, and there has yet to be a meaningful commitment to
restoring it. This has occurred even as the pandemic has continued to disproportionately
impact low wage workers, leaving some grocery workers as the primary earners in their
households. (https://www.pewsocialtrends.org/2020/09/24/economic-fallout-from-covid-
19-continues-to-hit-lower-income-americans-the-hardest/)
The December 6, 2020 regional stay-at-home order was lifted on January 25, 2021, but
the virus continues to be widespread throughout Southern California. Vaccines are being
distributed throughout Riverside County to front-line essential workers in certain industries
and persons who are age 65 and older. The vaccination effort is being done, in part, at
retail pharmacies, putting those essential workers at an increased risk of exposure.
The City Council has requested that a "Hero Pay" ordinance be brought back for
consideration and possible adoption.
ANALYSIS:
The draft urgency ordinance would require grocery and retail pharmacy stores within the
City to provide premium pay of an additional $4.00 per hour to their workers for at least
120 days.
"Grocery store" would include stores that devote 70% or more of their business to
selling food products or a store that dedicates at least 15,000 square feet of floor space
to retailing a general range of food products. Therefore, in addition to stand-alone
grocery stores, big box retailers that devote at least 15,000 square feet to food products
would be covered by this ordinance. "Retail pharmacy" would include commercial chain
pharmacies. Additionally, grocery stores and retail pharmacies would only be subject to
the ordinance if they employ 300 or more workers nationally and more than 15
employees per location within the City.
Under the ordinance, grocery stores and pharmacies may not retaliate against a worker
by reducing compensation or otherwise limiting the worker's earning capacity in order to
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February 25, 2021 --Page 3
Hero Pay Ordinance
avoid the application of the Hero pay. In addition, these stores must provide their
workers with notice of the ordinance, including their right to premium pay, their right to
be protected from retaliation, and their ability to bring a civil action if these rights are
violated. Records showing compliance with the ordinance must be kept by the stores for
at least two years.
Any grocery store or retail pharmacy that violates the ordinance is subject to appropriate
relief at law or equity, including reinstatement of the aggrieved worker, front pay in lieu
of reinstatement with full payment of unpaid compensation plus interest in favor of the
aggrieved worker, and liquidated damages in an additional amount of up to twice the
unpaid compensation. If a worker prevails in a civil action, reasonable attorneys fees
and costs may be awarded against the employer, in addition other legal or equitable
relief as may be appropriate.
The provisions of the ordinance may be expressly waived in a collective bargaining
agreement. Otherwise, any other waiver by a worker of any provision will be deemed
contrary to public policy, void, and unenforceable.
There are several other jurisdictions that have adopted, are in the process of adopting,
or are at least considering, similar "hero pay" or "hazard pay" ordinances. A summary
chart including this information is attached to this report.
Additional Categories of Protected Workers
The proposed ordinance protects employees of certain grocery stores and retail
pharmacies. As discussions of Hero Pay ordinances have occurred in other cities, some
have asked whether other categories of workers should be provided similar protections,
including farm workers and restaurant workers.
According to a new University of California San Francisco study, California agricultural
and restaurant workers have suffered 50% to 60% higher death rates during the
pandemic than before the pandemic. The study's data shows that restaurant cooks
carry the most risk of COVID-19-related death in the entire state.
(https://www.medrxiv.org/content/10.1101/2021.01 .21.21250266v1 )
The National Center for Farmworker Health, Inc. reported that as of February 1, 2021
more than 480,000 agricultural workers have tested positive for COVID-19 nationwide, a
figure likely to be underestimated. (http://www.ncfh.org/msaws-and-covid-19.html) The
COVID-19 Farmworker Study (COFS) report entitled Always Essential, Perpetually
Disposable: California Farmworkers and the COVID-19 Pandemic explores how the
pandemic is exacerbating long-standing crises, vulnerabilities, and economic frailties
within the food system and heightening insecurity, risk, and health disparities for
farmworkers and their families through a survey of nearly 1,000 farm workers in
California. (covid19farmworkerstudy.org)
Grocery store, retail pharmacy, and restaurant workers have not only had to perform
their jobs but have become "de facto public health marshals", enforcing critical mask
and social distancing protocols. Over three-quarters of workers (78%) report
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February 25, 2021 --Page 4
Hero Pay Ordinance
experiencing or witnessing hostile behavior from customers in response to staff
enforcing COVID-19 safety protocols, and nearly 60% report experiencing such hostility
at least weekly.
(https://onefairwage.site/wp-content/uploads/2020/12/OFW COVID WorkerExp-1.pd f)
This raises the question of whether the Council may wish to consider adopting an
ordinance that addresses workers in additional sectors. If so, City staff and the City
Attorney's Office would seek direction from the City Council, so that such an ordinance
can be drafted and brought back at a subsequent Council meeting.
Coachella Ordinance
On February 10, 2021 the City of Coachella adopted a Hero Pay ordinance similar to
the proposed ordinance, but with a few notable differences.
The Coachella ordinance applies to:
• Agricultural workers and restaurant workers in addition to grocery workers and
retail pharmacy workers; and
• Business in the City with at least 5 employees per location, rather than
businesses with at least 15 employees per location, as indicated in the proposed
ordinance.
Coachella defines "agricultural operation" as any operation devoted to the bona fide
production of crops, or animals, or fowl including the production and/or packing of fruits
and vegetables of all kinds; meat, dairy, and poultry products; nuts, tobacco, nursery,
and floral products; and the production and harvest of products from silviculture (i.e.,
growing/cultivating trees) activity.
"Restaurant" is defined as a building or place the principal purpose of which is the
preparation and serving, on a retail basis, of food and drink to people for consumption
on the premises, and where take away meals and drinks or entertainment are also
provided.
Additionally, the Coachella ordinance defines "grocery store" differently than the
proposed ordinance. The Coachella ordinance defines "grocery store" as a store that
devotes 70% or more of their business to selling food products. The proposed
ordinance, as discussed above, expands this definition to also include stores with at
least 15,000 square feet of floor space dedicated to food products so that some big box
retailers would fall under the ordinance.
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February 25, 2021 --Page 5
Hero Pay Ordinance
Latest Developments
On March 19, 2021, the City of Long Beach adopted a Hero Pay ordinance, covering
grocery store workers. The following day, the California Grocers Association filed a
lawsuit against the City. On January 22, U.S. District Judge Dolly M. Gee denied the
Association's request for a temporary restraining order to stop enforcement of the
ordinance before a court could hear the case, and set a hearing for February 19 on the
Association's request for a preliminary injunction to halt the Long Beach ordinance while
the case is pending. Details of the February 19 hearing will be provided prior to or at the
City Council meeting discussing this item.
On February 1, 2021 the Los Angeles Times reported that Kroger, which owns several
supermarket chains, said it would close two stores in Long Beach in response to the
city's adoption of a "Hero Pay" ordinance. The stores slated for closure are a Ralphs
and a Food 4 Less store, affecting 200 workers.
ENVIRONMENTAL ASSESSMENT:
The adoption of this 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.
FISCAL IMPACT:
There would be a fiscal impact to the grocery stores and retail pharmacies, as those
employers would be required to pay their workers additional compensation. There will
also be a positive fiscal impact to the employees of those sectors, as this ordinance will
provide them additional compensation.
David H. Ready, Esq. Ph.LJ--·~
City Manager
Attachments:
1. Draft Urgency Ordinance
Jeffrey Ballinger
City Attorney
2. Chart of Hero Pay Ordinance Action in other Jurisdictions
5
ATTACHMENT 1
DRAFT URGENCY ORDINANCE
6
ORDINANCE NO. ----
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING
THE PALM SPRINGS MUNICIPAL CODE BY ADDING
CHAPTER 5.87, RELATING TO GROCERY AND RETAIL
PHARMACY WORKERS IN PALM SPRINGS, AND
ESTABLISHING LABOR STANDARDS AND
REQUIREMENTS FOR PREMIUM PAY FOR GROCERY
AND RETAIL PHARMACY WORKERS WORKING IN PALM
SPRINGS (four-fifths (4/5) vote required)
City Attorney Summary
The Urgency Ordinance aims to protect and promote the public health,
safety, and welfare during the COVID-19 emergency by requiring grocery
and retail pharmacy stores to provide premium pay for grocery and retail
pharmacy workers performing work in Palm Springs.
WHEREAS, the new coronavirus 19 ("COVID-19") disease is caused by a virus
that spreads easily from person to person and may result in serious illness or death, and
is classified by the World Health Organization ("WHO") as a worldwide pandemic; and
WHEREAS, COVID-19 has broadly spread throughout California and remains a
significant health risk to the community, especially members of our most vulnerable
populations; and
WHEREAS, on March 4, 2020, California Governor Gavin Newsom proclaimed a
state of emergency in response to new cases of COVID-19, directing state agencies to
use all resources necessary to prepare for and respond to the outbreak; and
WHEREAS, the City Manager acting as Director of Emergency Services issued a
Proclamation of Local Emergency regarding COVID-19 on March 14, 2020 that was
ratified by the City Council on March 19, 2020; and
WHEREAS, on March 19, 2020, California Governor Gavin Newsom issued a
"Stay Home -Stay Healthy" proclamation closing all non-essential workplaces, requiring
people to stay home except to participate in essential activities or to provide essential
business services, and banning all gatherings for social, spiritual, and recreational
purposes. In addition to healthcare, public health and emergency services, the "Stay
Home -Stay Healthy" proclamation identified grocery and retail pharmacy stores as
essential business sectors critical to protecting the health and well-being of all
Californians and designated their workers as essential critical infrastructure workers; and
WHEREAS, on December 3, 2020, Governor Newsom issued a Regional Stay at
Home Order; and
72500.00937\33707744. l 7
WHEREAS, as of February 16, 2021, the WHO Situation Report reported a global
total of 108,822,960 cases of COVID-19, including 2,403,641 deaths; California reported
3,412,057 cases of COVID-19, including 47,107 deaths; and Palm Springs has reported
3,553 cases of COVID-19, including 105 deaths; and
WHEREAS, grocery and retail pharmacy stores are essential businesses
operating in Palm Springs during the COVID-19 emergency making grocery and retail
pharmacy workers highly vulnerable to economic insecurity and health or safety risks;
and
WHEREAS, grocery and retail pharmacy workers are essential workers who
perform services that are fundamental to the economy and health of the community during
the COVID-19 crisis. They work in high risk conditions with inconsistent access to
protective equipment and other safety measures; work in public situations with limited
ability to engage in physical distancing; and continually expose themselves and the public
to the spread of disease; and
WHEREAS, premium pay, paid in addition to regular wages, is an established type
of compensation for employees performing hazardous duty or work involving physical
hardship that can cause extreme physical discomfort and distress; and
WHEREAS, grocery and retail pharmacy workers working during the COVID-19
emergency merit additional compensation because they are performing hazardous duty
due to the significant risk of exposure to the COVI D-19 virus. Grocery and retail pharmacy
workers have been working under these hazardous conditions for months. They are
working in these hazardous conditions now and will continue to face safety risks as the
virus presents an ongoing threat for an uncertain period, potentially resulting in
subsequent waves of infection; and
WHEREAS, the availability of grocery and retail pharmacy stores is fundamental
to the health of the community and is made possible during the COVID-19 emergency
because grocery and retail pharmacy workers are on the frontlines of this devastating
pandemic supporting public health, safety, and welfare by working in hazardous
situations; and
WHEREAS, establishing an immediate requirement for grocery and retail
pharmacy stores to provide premium pay to grocery and retail pharmacy workers protects
public health, supports stable incomes, and promotes job retention by ensuring that
grocery and retail pharmacy workers are compensated for the substantial risks, efforts,
and expenses they are undertaking to provide essential services in a safe and reliable
manner during the COVID-19 emergency.
NOW, THEREFORE, the City Council of the City of Palm Springs ordains as
follows:
SECTION 1. Incorporation of Recitals. The findings and determinations
reflected above are true and correct, and are incorporated by this reference herein as the
cause and foundation for the action taken by and through this Urgency Ordinance.
72500.00937\33707744. l 8
SECTION 2. Addition to Palm Springs Municipal Code. Chapter 5.87 Premium
Pay for Grocery and Retail Pharmacy Workers is hereby added to the Palm Springs
Municipal Code as follows:
"CHAPTER 5.87
PREMIUM PAY FOR GROCERY AND RETAIL PHARMACY WORKERS
5.87.005 Purpose.
As a result of the COVID-19 pandemic, this Ordinance aims to protect and
promote the public health, safety, and welfare during the new coronavirus 19
("COVID-19") emergency by requiring grocery and retail pharmacy stores to
provide premium pay for grocery and retail pharmacy workers performing work in
Palm Springs. Requiring grocery and retail pharmacy stores to provide premium
pay to grocery and retail pharmacy workers compensates grocery and retail
pharmacy workers for the risks of working during a pandemic. Grocery and retail
pharmacy workers face magnified risks of catching or spreading the COVID-19
disease because the nature of their work involves close contact with the public,
including members of the public who are not showing symptoms of COVID-19 but
who can spread the disease. The provision of premium pay better ensures the
retention of these essential workers who are on the frontlines of this pandemic
providing essential services and who are needed throughout the duration of the
COVID-19 emergency. As such, they are deserving of fair and equitable
compensation for their work.
5.87.010 Short title.
This Ordinance shall constitute the "Premium Pay for Grocery and Retail
Pharmacy Workers Ordinance" and may be cited as such.
5.87.020 Definitions.
For purposes of this Ordinance:
"Adverse action" means reducing the compensation to a designated worker,
garnishing gratuities, temporarily or permanently denying or limiting access to
work, incentives, or bonuses, offering less desirable work, demoting, terminating,
deactivating, putting a designated worker on hold status, failing to rehire after a
seasonal interruption of work, threatening, penalizing, retaliating, or otherwise
discriminating against a designated worker for any reason prohibited by Section
5.87.090. "Adverse action" also encompasses any action by the hiring entity or a
person acting on the hiring entity's behalf that would dissuade a designated worker
from exercising any right afforded by this Ordinance.
"Aggrieved party" means a designated worker or other person who suffers
tangible or intangible harm due to a hiring entity or other person's violation of this
Ordinance.
72500.00937\33707744. l 9
"City" means the City of Palm Springs.
"Designated worker" means a grocery store worker or retail pharmacy
worker employed directly by a hiring entity who is entitled to premium pay pursuant
to this Ordinance.
"Grocery worker" means a worker employed directly by a hiring entity at a
grocery store. Grocery worker does not include managers, supervisors, or
confidential employees.
"Grocery store" means 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 (15,000 sf) of
floor space dedicated to retailing a general range of food products. There is a
rebuttable presumption that if a store receives seventy percent (70%) or more
revenue from retailing a general range of food products, or if a store has at least
fifteen thousand square feet (15,000 sf) of floor space dedicated to retailing a
general range of food products, then it qualifies as a grocery store.
"Hiring entity" means a grocery store or retail pharmacy that employs over
three hundred (300) designated workers nationally and employs more than fifteen
(15) employees per grocery store location or retail pharmacy location in the City of
Palm Springs.
"Premium pay" means additional compensation owed to a designated
worker that is separate from hiring entity payments for providing services, bonuses,
and commissions, as well as tips earned from customers.
"Respondent" means a grocery store, retail pharmacy, parent company or
any person who is alleged or found to have committed a violation of this Ordinance.
"Retail pharmacy" means a corporate or chain pharmacy that is licensed as
a pharmacy by the State of California and that dispenses medications to the
general public at retail prices. Such term does not include a pharmacy that
dispenses prescription medications to patients primarily through the mail, nursing
home pharmacies, long-term care facility pharmacies, hospital pharmacies, clinics,
charitable or not-for-profit pharmacies, government pharmacies, or pharmacy
benefit managers.
"Retail pharmacy worker" means a worker employed directly by a hiring
entity at a retail pharmacy. Retail pharmacy worker does not include managers,
supervisors, or confidential employees.
5.87.030 Designated worker coverage.
For the purposes of this Ordinance, covered designated workers are limited
to those who perform work for a hiring entity where the work is performed in the
City of Palm Springs.
72500.00937\33707744. l 10
5.87.040 Hiring entity coverage.
A. For purposes of this Ordinance, hiring entities are limited to those
who employ three hundred (300) or more designated workers nationally and
employ more than fifteen (15) employees per grocery store or retail pharmacy
location in the City of Palm Springs.
B. To determine the number of designated workers employed for the
current calendar year:
1. The calculation is based upon the average number per
calendar week of workers who worked for compensation during the preceding
calendar year for any and all weeks during which at least one (1) designated
worker worked for compensation. For hiring entities that did not have any
designated workers during the preceding calendar year, the number of designated
workers employed for the current calendar year is calculated based upon the
average number per calendar week of designated workers who worked for
compensation during the first ninety (90) calendar days of the current year in which
the hiring entity engaged in business.
2. All designated workers who worked for compensation shall be
counted, including but not limited to:
(a) Grocery workers and retail pharmacy workers who are
not covered by this Ordinance; and
(b) Designated workers who worked in Palm Springs.
5.87.050 Premium pay requirement.
A. Hiring entities shall provide each designated worker with premium
pay consisting of an additional Four Dollars ($4.00) per hour for each hour worked.
B. Hiring entities shall provide the pay required by Subsection 5.87.050
(A) for a minimum of one hundred twenty (120) days from the effective date of this
Ordinance.
C. Unless extended by City Council, this Ordinance shall expire in one
hundred twenty (120) days.
5.87.060 Designated worker and consumer protections.
A. No hiring entity shall, as a result of this Ordinance going into effect,
take any of the following actions:
1. Reduce a designated worker's compensation;
2. Limit a designated worker's earning capacity.
72500.00937\33707744. l 11
B. It shall be a violation if this Ordinance is a motivating factor in a hiring
entity's decision to take any of the actions in Subsection 5.87 .060 (A) unless the
hiring entity can prove that its decision to take the action(s) would have happened
in the absence of this Ordinance going into effect.
5.87.070 Notice of rights.
A. Hiring entities shall provide covered designated workers with a
written notice of rights established by this Ordinance. The notice of rights shall be
in a form and manner sufficient to inform designated workers of their rights under
this Ordinance. The notice of rights shall provide information on:
1. The right to premium pay guaranteed by this Ordinance;
2. The right to be protected from retaliation for exercising in good
faith the rights protected by this Ordinance; and
3. The right to bring a civil action for a violation of the
requirements of this Ordinance, including a hiring entity's denial of premium pay
as required by this Ordinance and a hiring entity or other person's retaliation
against a covered designated worker or other person for asserting the right to
premium pay or otherwise engaging in an activity protected by this Ordinance.
B. Hiring entities shall provide the notice of rights required by posting a
written notice of rights in a location of the grocery store or retail pharmacy location
utilized by employees for breaks, and in an electronic format that is readily
accessible to the designated workers. The notice of rights shall be made available
to the designated workers via smartphone application or an online web portal, in
English and any language that the hiring entity knows or has reason to know is the
primary language of the designated worker(s).
5.87.080 Hiring entity records.
A. Hiring entities shall retain records that document compliance with
this Ordinance for covered designated workers.
B. Hiring entities shall retain the records required by Subsection
5.87.080 (A) for a period of two (2) years.
C. If a hiring entity fails to retain adequate records required under
Subsection 5.87.080 (A), there shall be a presumption, rebuttable by clear and
convincing evidence, that the hiring entity violated this Ordinance for each covered
designated worker for whom records were not retained.
5.87.090 Retaliation prohibited.
No hiring entity employing a designated worker shall discharge, reduce in
compensation, or otherwise discriminate against any designated worker for
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opposing any practice proscribed by this Ordinance, for participating in
proceedings related to this Ordinance, for seeking to exercise their rights under
this Ordinance by any lawful means, or for otherwise asserting rights under this
Ordinance.
5.87.100 Violation.
The failure of any respondent to comply with any requirement imposed on
the respondent under this Ordinance is a violation of this Ordinance.
5.87.110 Remedies.
A. The payment of unpaid compensation, liquidated damages, civil
penalties, penalties payable to aggrieved parties, fines, and interest provided
under this Ordinance is cumulative and is not intended to be exclusive of any other
available remedies, penalties, fines, and procedures.
B. A respondent found to be in violation of this Ordinance for retaliation
under Section 5.87.090 shall be subject to any appropriate relief at law or equity
including, but not limited to reinstatement of the aggrieved party, front pay in lieu
of reinstatement with full payment of unpaid compensation plus interest in favor of
the aggrieved party under the terms of this Ordinance, and liquidated damages in
an additional amount of up to twice the unpaid compensation.
5.87.120 Private right of action.
A. Any covered designated worker that suffers financial mJury as a
result of a violation of this Ordinance, or is the subject of prohibited retaliation under
Section 5.87.090, may bring a civil action in a court of competent jurisdiction
against the hiring entity or other person violating this Ordinance 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.
5.87.130 Encouragement of more generous policies.
A. Nothing in this Ordinance shall be construed to discourage or prohibit
a hiring entity from the adoption or retention of premium pay policies more
generous than the one required herein.
B. Nothing in this Ordinance shall be construed as diminishing the
obligation of a hiring entity to comply with any contract or other agreement
providing more generous protections to a designated worker than required by this
Ordinance.
72500.00937\33707744. l 13
5.87.140 Other legal requirements.
This Ordinance provides minimum requirements for premium pay while
working for a hiring entity during the COVID-19 emergency and shall not be
construed to preempt, limit, or otherwise affect the applicability of any other law,
regulation, requirement, policy, or standard that provides for higher premium pay,
or that extends other protections to designated workers; and nothing in this
Ordinance shall be interpreted or applied so as to create any power or duty in
conflict with federal or state law. Nothing in this Section shall be construed as
restricting a designated worker's right to pursue any other remedies at law or equity
for violation of their rights.
5.87.150 Severability.
The provisions of this Ordinance are declared to be separate and severable.
If any clause, sentence, paragraph, subdivision, section, subsection, or portion of
this Ordinance, or the application thereof to any hiring entity, designated worker,
person, or circumstance, is held to be invalid, it shall not affect the validity of the
remainder of this Ordinance, or the validity of its application to other persons or
circumstances.
5.87.160 Exemption for collective bargaining agreement.
All of the provisions of this Ordinance, or any part thereof, may be expressly
waived in a collective bargaining agreement, but only if the waiver is explicitly set
forth in the agreement in clear and unambiguous terms. Unilateral implementation
of terms and conditions of employment by either party to a collective bargaining
relationship shall not constitute a waiver of all or any of the provisions of this
Ordinance.
5.87.170 No waiver of rights.
Except for a collective bargaining agreement provision made pursuant to
Section 5.87.160, any waiver by a designated worker of any or all provisions of this
Ordinance shall be deemed contrary to public policy and shall be void and
unenforceable. Other than in connection with the bona fide negotiation of a
collective bargaining agreement, any request by a hiring entity to a designated
worker to waive rights given by this Ordinance shall be a violation of this
Ordinance.
SECTION 3. Urgency Findings. Pursuant to City Charter Section 312 and
California Government Code Section 36937, this Ordinance is designed to protect the
health, safety and welfare of the citizens of the City of Palm Springs and becomes
effective immediately up adoption by a four-fifths (4/5) vote of the City Council. The City
Council hereby finds that there is an urgent need to adopt these regulations in order to
address the current and immediate threats set forth above.
72500.00937\33707744.1 14
SECTION 4. CEQA. 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.
SECTION 5. Severability. If any section or provision of this Urgency
Ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, or contravened by reason of any preemptive legislation, the
remaining sections and/or provisions of this Urgency Ordinance shall remain valid. The
City Council hereby declares that it would have adopted this Urgency Ordinance, and
each section or provision thereof, regardless of the fact that any one or more section(s)
or provision(s) may be declared invalid or unconstitutional or contravened via legislation.
SECTION 6. Adoption, Certification, and Publication. The Mayor shall
sign and the City Clerk shall certify to the passage and adoption of this Urgency
Ordinance and shall cause the same, or the summary thereof, to be published and posted
pursuant to the provisions of law.
ADOPTED THIS 25TH DAY OF FEBRUARY 2021.
ATTEST:
ANTHONY J. MEJIA, MMC
CITY CLERK
72500.00937\33 707744.1
CHRISTY HOLSTEGE
MAYOR
15
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, California, do hereby
certify that Urgency Ordinance No. __ is a full, true, and correct copy, and was adopted
without introduction at a regular meeting of the City Council held on February 25, 2021
by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the
City of Palm Springs, California, this 25th day of February, 2020.
72500.00937\33707744. l
ANTHONY J. MEJIA, MMC
CITY CLERK
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ATTACHMENT 2
CHART OF HERO PAY ORDINANCE
ACTION IN OTHER JURISDICTIONS
17
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City Adopted Key Language ~ Businesses Regulated Status -,
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~ ,;
Long Beach Adopted Urgency Ordinance • + $4/hr • Grocery stores who Litigation pending;
on January 22, 2021 employ 300 or more California Grocers
• Applies to grocery grocery workers Association v. Long Beach
stores with more nationally and (2:21-cv-00524-DMG-AS)
than 300 employ more than Hearing set for February 19,
employees 15 employees per 2021.
nationally /more grocery store in the
than 15 per City
grocery store
within City
• In effect for 120
days
Los Angeles Adopted Resolution • +$5/hr • Grocery and Drug No update as of February 16,
County directing County Counsel to Retail Stores with 2021.
draft urgency ordinance and • Applies to grocery 300 or more
deliver written report to the stores with more employees
Board prior to January 26, than 300 nationally and 10 or
2021 employees more employees on-
nationally/more site
than 10 employees
per store
• In effect for 120
days
Los Angeles Economic Development and • +$5/hr • Grocery and Drug
City Jobs Committee directed Retail Stores with
City Attorney to draft an • Applies to grocery 300 or more
emergency ordinance stores with more employees
than 300 nationally and 10 or
55575.00001 \33704466.2
18
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City '' Adopted Key Language Businesses Regulated Status r:
" ..
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requiring "HERO" Pay employees more employees on-
( January 26, 2021) nationally site
• In effect for 120
days
City and Adopted Resolution urging • +$5/hr • Grocery stores with Non-binding resolution
County of Grocery Stores in SF to at least 40 locations
San provide Hazard Pay (January • Duration that nationwide who
Francisco 5, 2021) City /County is in employ workers in
Purple, Red or the City
Orange level of
Community
Disease
Transmission
Pomona Adopted resolution directing • +$4/hr • Would apply to Adopted resolution at
CM and CA to bring to grocery stores, retail Special Meeting on January
Council an urgency • Would apply to drug stores and "big 28, 2021.
ordinance requiring all retail stores box" retailers
"HERO" pay to grocery that are publicly
store employees traded with at
least 300
employees
nationwide and
more than 10
employees per
store
55575.0000 l \33704466.2
19
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City Adopted ' Key Language Businesses Regulated Status ' ..
,, ' ~ .• .. .•
r-l, ;'II
' . .~· .. "
• Would apply to
ALL RETAIL
WORKERS
• Duration of 120
days
Santa Ana Resolution directing CM and • +$4/hr • Would apply to City Manager and City
CA to bring to Council an grocery retail Attorney reporting back to
urgency ordinance requiring • Applies to employees within Council on March 2, 2021
"HERO" pay to grocery grocery stores City council meeting
store employees (January with more than
12, 2021) 300 employees
nationally
• In effect for 120
or 180 days
Santa Directed CM to bring forth Holding off for LA County
Monica an emergency ordinance Board of Supervisors to
providing for premium pay finalize their ordinance
for grocery store employees (February 3, 2021)
(January 12, 2021)
Coachella Passed urgency ordinance • +$4/hr • Agricultural Urgency Ordinance passed.
requiring grocery stores, operations, grocery (February 10, 2021)
retail pharmacy, restaurant, • Applies to store, restaurant, or
and agricultural employers employers who retail pharmacy
provide HERO Pay to their have 300 locations with 300 or
employees more workers
55575.00001 \33704466.2
20
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City Adopted ,: , Key Language ., Businesses Regulated Status '•
"[ ~-, I' 'I ti •· r. .. ' '
'
..
~ ., ~
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employees (February 10, nationwide and nationally and
2021) at least 5 per employs more than 5
location in the employees per
City location in the City
• 120 days
Berkeley Resolution referring CM and • +$5/hr • Applies to
CA to draft an emergency commercial
ordinance providing grocery • Would last until establishments
employees premium pay City returns to classified as Industry
until City returns to Yellow-Yellow Tier 4 445110 under the
Tier 4 designation (January designation North American
19, 2021) Industry
Classification
System with a total
floor area over 2,500
square feet and
selling 25 linear feet
of more of food
West Adopted HERO Pay • +$5/hr • Applies to publicly Council would like to expand
Hollywood ordinance (February 16, traded or have at ordinance to include other
2021) • In effect for 120 least 300 employees big-box national chains in
days nationwide and more the city like Target, CVS,
than 15 employees Rite Aid and Best Buy. Will
per store in the City consider additional language
at next Council meeting
(March 3, 2021)
55575.00001\33704466.2
21
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City Adopted ,. , .. Key Language Businesses Regulated Status ~ ~d.1 ... l 1:
' ~ -
"-;
Montebello Adopted HERO Pay • +$4/hr • Grocery and drug California Grocers
Ordinance at January 27, retail workers at Association filed a lawsuit
2021 meeting • In effect for 180 publicly traded or
days employers who have
at least 300
• Applies to employees
Grocery and large nationwide and more
drug store than 15 employees
employees per grocery or drug
store location in the
City
Oakland Adopted HERO Pay • +5/hr • Grocery store chains California Grocers
Ordinance on February 2, with 500 or more Association filed a lawsuit
2021 • Applies to grocery employees
chains with more nationwide
than 500
employees
• Duration while
threat of COVID-
19 stays above the
minimum level in
the City
San Jose Adopted resolution directing • +$3/hr
City Attorney to draft an
ordinance for Hazard Pay
for grocery workers
(February 2, 2021)
55575.00001 \33704466.2
22
CHART OF HERO PAY ORDINANCE ACTION IN OTHER JURISDICTIONS
City ' Adopted ~ Key Language .. Businesses Regulat,ed Status . . ~
.• . ~' ' '•
Irvine Adopted ordinance requiring • +$4/hr • Any retail
"HERO Pay" on February 9, establishment that
2021 • 120 days employs at least 15
employees at a retail
establishment and
whose owner, parent
company, franchisor
or network of
franchises
employees 300 or
more employees
nationally
55575.00001 \33704466.2
23