On February 23, 2021, the City Council of Irvine, California, passed a hero pay ordinance entitling retail grocery store and drug store workers premium pay for hours worked during the COVID-19 pandemic. Irvine is located in Orange County. The ordinance requires that covered employers, as the ordinance defines them, provide their workers with premium pay of $4.00 for each hour worked. After passing its second reading on February 23, 2021, the ordinance will take effect in 30 days, for a minimum of 120 days.
Status of Ordinance
On February 9, 2021, the City Council of Irvine, California voted to mandate hero pay for grocery and drug store employees in the city. Because the ordinance passed by a vote of 3–2 and not a four-fifths supermajority, the city council had to pass the ordinance a second time by majority vote on February 23, 2021. Because it did so, the ordinance will become effective 30 days from the second reading/adoption, which is March 25, 2021.
The ordinance defines “covered employers” as retail establishments that employ 300 or more employees nationwide and that employ at least 15 employees at the particular establishment.
The ordinance currently defines “retail establishment” as an establishment in the City of Irvine that meets one of the following criteria:
- devotes 70 percent or more of its sales floor area to retailing a general range of food products, which may be fresh or packaged, or receives 70 percent or more revenue from retailing a general range of food products;
- is more than 85,000 square feet and devotes 10 percent or more of its sales floor area to the sale of merchandise that is nontaxable;
- a retail pharmacy that sells a variety of prescription and nonprescription medicines, as well as any combination of miscellaneous items, including but not limited to sundries, dry foods, packaged foods, beverages, fresh produce, meats, deli products, dairy products, canned foods, or prepared foods.
The ordinance applies to employees who work at least two hours per week for a covered employer in the city of Irvine. Managers, supervisors, and confidential employees are not covered employees under the ordinance.
Covered Employee Protections
The ordinance prohibits an employer from taking adverse actions against employees because of the ordinance. Employers may not reduce the wages and benefits, including the base wage rate, overtime, hours of work, vacation or benefit contributions. Nor can employers increase charges, such as for parking or uniforms, to an employee. An employer that takes such action must show that it would have taken the same action even absent the ordinance’s operation.
The ordinance prohibits employers from discharging, reducing the compensation of, or taking any other adverse action against an employee for engaging in protected activity. Protected activity includes opposing any practice that the ordinance prohibits, participating in proceedings related to the ordinance, and seeking to exercise the employee’s rights under the ordinance. Employees must have a good-faith belief that the employer is violating the ordinance, even if the employee is mistaken.
Written Notice to Covered Employees
The ordinance requires that employers post, in a conspicuous worksite location, a written notice advising covered employees of their rights under the ordinance. The employer also must make the notice available in an electronic format that covered employees can access easily, including through a smartphone application or 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 at the establishment.
Employers must keep records demonstrating compliance with the ordinance for two years. If the employer fails to maintain such records, the city will presume that the employer violated the ordinance, absent clear and convincing evidence otherwise.
Collective Bargaining Agreements
Unlike other California local hero pay ordinances, the Irvine ordinance does not include a collective bargaining agreement exception that allows parties to the agreement to waive the ordinance’s application if the agreement explicitly sets out the waiver “in clear and unambiguous terms.”
The ordinance also creates a private right of action for covered employees who suffer injury because an employer violated the ordinance. The ordinance authorizes remedies that include lost wages and reinstatement, as well as attorneys’ fees and costs for employees who successfully pursue such actions. The ordinance also authorizes exemplary damages in an amount of twice the employee’s monetary damages if the employer acted with malice, fraud, or oppression.
Credit for Employer-Initiated Hazard Pay
Although other cities’ hero pay ordinances provide an employer with credit if the employer already is providing employees with premium pay, the Irvine ordinance is silent as to the issue.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.