Oakland Approves COVID-19–Related ‘Hazard Pay’ Ordinance Requiring Premium Pay for Large-Chain Grocery Store Workers

On February 2, 2021, the City Council of Oakland, California, passed the “Grocery Worker Hazard Pay Emergency Ordinance” to provide a boost in pay for frontline workers during the COVID-19 pandemic. Oakland is located in Alameda County and is just across the Bay Bridge from San Francisco, California. The ordinance requires large grocery stores in Oakland to provide their workers with premium pay of $5.00 for each hour worked. The ordinance takes effect immediately and is in effect during those periods when Oakland’s risk of COVID-19 transmission is elevated, according to the state’s four-tiered color-coded framework. The order applies at the widespread (purple), substantial (red), and moderate (orange) COVID-19 transmission risk levels under state health orders. The ordinance is not in effect only during “minimal” (yellow) risk periods.

Covered employers. The ordinance applies only to employers that operate large grocery stores in Oakland. A “covered employer” is one that “employs 500 or more employees nationwide … or is a [f]ranchisee associated with a [f]ranchisor or a network of [f]ranchises with [f]ranchisees that employ more than 500 employees in the aggregate, regardless of where those employees are employed.” The ordinance defines a “grocery store” as a store that “sells primarily household foodstuffs for offsite consumption” and a “large grocery store” as “a retail or wholesale store that is over 15,000 square feet in size.”

Covered employees. The ordinance applies to employees who perform work for large grocery stores in Oakland and who are “entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission.”

No retaliation. The ordinance prohibits employers from retaliating against employees for exercising their rights under the ordinance.

Posted notice. The ordinance requires the city to publish and make available on its website a notice for covered employers to use. Within three days of the city’s publishing the notice, covered employers must provide the notice “in a manner calculated to reach all employees.” A covered employer may post the notice via electronic communication or by posting it in a conspicuous place at the worksite or in a conspicuous place on the employer’s web-based or app-based platform. The employer must provide the notice in English and in all languages spoken by more than 10 percent of the employees. The employer also must provide the notice when the city moves from the purple, red, or orange risk level to the yellow risk level, or from the yellow risk level to any of the other three tiers.

Employer-provided information to employees. Also within three days of the city’s publishing the ordinance notice, every covered employer must provide each covered employee with the employer’s name, the name of the owner or manager, the employer’s address and telephone number, and “whether  [the employer] is part of a franchise associated with a franchisor or network of franchisees.”

Record retention. Employers must keep compliance records for at least three years.

Collective bargaining agreements. Collective bargaining agreements can waive the ordinance’s application but only if the agreement explicitly sets out the waiver “in clear and unambiguous terms.”

Enforcement. Oakland’s Department of Workplace and Employment Standards is responsible for enforcement of the ordinance and “may impose penalties and take any and all appropriate action to enforce the [ordinance’s] requirements.” The ordinance is subject to administrative and civil enforcement.

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.