Thursday, February 25, 2021
On February 23, 2021, Irvine, California City Council passed a Hero Wage Ordinance that entitles the retail and drugstore worker bonus for hours worked during the COVID-19 pandemic. Irvine is located in Orange County. The ordinance requires insured employers, as defined in the ordinance, to pay their employees a premium salary of $ 4.00 for every hour worked. After the second reading on February 23, 2021, the ordinance will come into force in 30 days for at least 120 days.
Status of the regulation
On February 9, 2021, Irvine, California city council voted to have heroes paid for grocery and drug store workers in the city. Since the regulation was passed with a number of votes of 3 to 2 and not a majority of four fifths, the city council had to pass the regulation a second time on February 23, 2021 with a majority of votes. This will make the regulation effective 30 days from the second reading / adoption, which will take place on March 25, 2021.
The ordinance defines “covered employers” as retail businesses that employ 300 or more people nationwide and employ at least 15 people in the respective business.
The ordinance currently defines “retail establishment” as any establishment in the city of Irvine that meets any of the following criteria:
70 percent or more of its retail space for a general-purpose range of groceries, which may be fresh or packaged, or 70 percent or more of its retail revenue for a general-purpose range of groceries;
is over 85,000 square feet and devotes 10 percent or more of its retail space to selling non-taxable goods;
a retail pharmacy that sells a variety of prescription and non-prescription medicines and any combination of different items including, but not limited to, sundries, dry food, packaged foods, beverages, fresh produce, meat, delicatessen products, dairy and canned or prepared foods.
The regulation applies to employees who work at least two hours a week for an insured employer in the city of Irvine. Managers, supervisors and confidential employees are not insured employees within the meaning of the ordinance.
Covered employee protection
The regulation prohibits an employer from taking disadvantageous measures against employees on the basis of the regulation. Employers may not reduce wages and benefits, including basic wages, overtime, working hours, vacation or performance contributions. Also, employers cannot increase parking or uniform fees for an employee. An employer who takes such measures must show that he would have taken the same measures without the application of the regulation.
The regulation prohibits employers from dismissing an employee for sheltered work, reducing compensation or taking any other adverse action against him. Protected activities include rejecting any practice that the regulation prohibits, participating in proceedings related to the regulation and attempting to exercise the workers’ rights under the regulation. Employees must have a good faith belief that the employer is violating the regulation, even if the employee is mistaken.
Written notification to the insured employees
The ordinance stipulates that employers at a conspicuous construction site must publish a written notification in which the insured employees are informed of their rights under the ordinance. The employer must also provide the notification in an electronic format that Covered Employees can easily access, including through a smartphone application or an online web portal. The notice must be available in English, Spanish, and any other primary language spoken by at least 10 percent of the employer’s employees in the facility.
Employers are required to keep records of compliance with the regulation for two years. If the employer does not keep such records, the city will assume that the employer has violated the regulation, unless there is clear and convincing evidence.
Unlike other California local hero payment regulations, the Irvine Regulation does not contain a collective agreement exception that allows contracting parties to waive the application of the regulation if the agreement expressly states the waiver “in clear and unambiguous terms”.
The regulation also creates a private right of action for insured employees who are injured because an employer has violated the regulation. The ordinance provides remedies that include lost wages and re-employment, as well as legal fees and costs for employees who successfully carry out such actions. The regulation also provides for exemplary compensation equal to double the monetary damage suffered by the employee if the employer has acted maliciously, fraudulently or in an oppressive manner.
Credit for employer-initiated hazard pay
Although other cities’ hero wage ordinances grant an employer credit if the employer is already providing premium wages to workers, the Irvine ordinance does not provide information on this matter.
© 2021, Ogletree, Deakins, Nash, Smoak and Stewart, PC, all rights reserved.National Law Review, Volume XI, Number 56