Cities in Washington and California are increasingly mandating an additional $4 to $5 an hour of COVID-19 premium pay, a move some in the retail industry see as an end run around the travails of collective bargaining.
These city ordinances started as temporary pay increases for front-line grocery store workers – also known as “hero pay” or “hazard pay” – but have extended to other industries. The city council of Seattle was among the first to approve legislation that requires larger grocery stores, such as Whole Foods, Ralph’s and Trader Joe’s, to pay workers an extra $4 an hour to reflect greater risk of coronavirus exposure.
“There are variants of the coronavirus that we are quite unsure of, and there is hopefully a higher level of safety that comes with the vaccine, but there’s still risk,” said Case Western Reserve University School of Law Professor Robert Strassfeld, a labor law expert..
In California, the city of Long Beach approved a similar bill called the Premium Pay for Grocery Workers Ordinance. Cities of San Leandro, Montebello, Oakland, West Hollywood and the county of Los Angeles followed with ordinances of their own. That’s when the California Grocers Association (CGA) filed suit against all of the California cities in federal court.
“They are saying that grocery store workers are exposed to hazards, meaning the coronavirus, when they go to work and that they are more inclined to get the coronavirus,” said Ron Fong, president of the CGA. “In our eyes, that is untrue because the grocery store industry has spent millions and even billions protecting grocery store workers by requiring masks and providing PPE, new temperature checks and partitions. The infection rate in grocery stores in reality is very small.”
But U.S. District Judge Otis Wright stated in his Feb. 25 order denying CGA a preliminary injunction against the city of Long Beach that any infection rate, however small, is substantial.
“A mildly elevated mortality risk is still an elevated mortality risk, and the City could have rationally decided to compensate grocery workers for taking on such risk by showing up for work,” Judge Wright wrote. “Moreover, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”
The CGA appealed Judge Wright’s denial in California Grocers Association v City of Long Beach to the Ninth Circuit while litigation presses on in the lower Central District.
“The United Food and Commercial Workers (UFCW) has influenced city councils to do this on their behalf,” Mr. Fong said. “They want to circumvent the bargaining process and force a $4 raise for their employees. They should be doing this through the collective bargaining process, which they are negotiating now, but they’re doing this in a forceful way by going through city councils. It’s an organized situation.”
UFCW did not immediately respond to requests for comment but in California Grocers Association v City of Montebello, filed in the Central District, UFCW Local 770 filed a motion to intervene on March 5 and a hearing is set for April 23.
“Local 770 was a principal advocate for passage of the Ordinance and represents many grocery and drug store employees within the City of Montebello who are benefited by it,” wrote UFCW attorney Henry Willis. “Local 770 seeks leave to intervene in this lawsuit to defend its interest as a principal proponent of the Ordinance and its members’ interests in the Ordinance’s increased pay for hazardous work.”
California Grocers Association v. City of San Leandro and California Grocers Association v. City of West Hollywood were filed in Northern District Court and Central District Court, respectively, and an order that would have transferred the cases to Judge Wright in the Central District was denied.
“I hereby decline to transfer the above-entitled case to my calendar for the reasons set forth: While both cases involve pandemic-related premium pay, the underlying facts involve different cities and different ordinances such that they do not arise out of the same or similar facts or transactions,” Judge Wright declared.
Overall, the threat of a CGA lawsuit isn’t stopping cities from approving hazard pay for frontline workers. On Feb. 10, the city council of Coachella, Calif., unanimously approved an emergency bill mandating an additional $4 an hour in pay for grocery store, pharmacy, restaurant and agricultural workers at companies with more than 300 employees nationally and more than five employees in Coachella.
“When we began this conversation in Coachella, we were aware of the lawsuits that were already pending against other jurisdictions,” said Megan Beaman Jacinto, an attorney and member of the Coachella city council. “We looked at the lawsuits and took into consideration the defenses to the claims when we made our decision. So, we have been aware of the possibility of litigation and we are prepared for it. We also think our actions are justifiable legally.”
By adding farm workers, the city council of Coachella isn’t concerned that the undocumented might benefit. “It has nothing to do with immigration status,” Ms. Jacinto said in an interview. “Any farm worker who is covered under the requirements of the ordinance will be entitled to the hero pay regardless of their immigration status, which is irrelevant.”
There are protections under the National Labor Relations Act, which apply to undocumented workers just as they do to any other workers but with one caveat, according to Mr. Strassfeld.
“The remedies are unavailable to undocumented workers, which means in effect that protections don’t apply,” he said. “It may be politically problematic to include undocumented workers, but I think the ordinance still stands.”