United States: Oakland, California Passes Ballot Measure Targeting Hotel Employers And Creating New Enforcement Mechanisms For Employment-Related Ordinances

Last Updated: November 26 2018
Article by Patrick C. Stokes and Bruce J. Sarchet

Voters in Oakland, California recently approved ballot "Measure Z," titled the "Oakland Minimum Wage Charter Amendment." The measure imposes new minimum wages and employment standards for some hotel workers, authorizes the City to administratively enforce its employment standards through investigations and penalties, and will create a Department of Workplace and Employment Standards (DWES) to carry out such enforcement activities.

This development can be seen as part of a trend that is increasingly impacting many employers in California and across the United States – local cities getting into the business of regulating various aspects of the employment relationships. We call this the "municipalizaiton" of employment law.

Measure Z reached the ballot through a successful initiative campaign led and funded by labor unions and employee activist organizations. Proponents emphasized the plight of hotel workers, with anecdotal evidence of inadequate wages, hard work, and sexual harassment. The largest donor to the "Yes" campaign adopted the title "Yes on Measure Z Committee for Fair Workplaces & Ending Sexual Assault on the Job." The results show the electorate found these efforts persuasive. Of the 141,168 votes cast, 106,966 were in favor of the measure.

The measure might, however, do both less and more than its proponents led voters to believe. The portions of the measure aimed at protecting hotel workers will apply only to hotels with 50 or more guest rooms. The administrative enforcement portions of the measure apply to all City employment standards, such as previously-adopted sick leave and minimum wage standards that took effect on March 2, 2015. The measure gives the City and DWES the authority to pass additional regulations "having the force of law." The least advertised (but by no means least intended) feature of the measure is to give labor unions the ability to sue employers directly for violations of any city employment standard.

Hotels and Hotel Workers

Covered Employers and Employees

The hotel-specific portions of the measure apply only to "Hotels," "Hotel Employers," and "Hotel Employees" as those terms are specifically defined in Chapter 5.93 of the Oakland Municipal Code.

The term "Hotels" includes hotels containing 50 or more guest rooms or suites of rooms. The ordinance applies also to: 1) any contracted, leased, or sublet premises, "connected to or operated in conjunction with" a Hotel; and 2) anyone "providing services at" a Hotel. This definition covers types of business one would not normally consider a hotel, such as a restaurant leasing space within a hotel.

The term "Hotel Employers" includes anyone who operates a business falling within the definition of the term Hotel.

The term "Hotel Employees" includes any employee or independent contractor employed by a Hotel, who was hired to work or did work an average of at least five hours per week for four weeks at a Hotel.

Minimum Wage

Effective July 1, 2019, Hotel Employers must pay the following minimum hourly wages to all Hotel Employees:

  • $15.00 for employees who also receive "health benefits" through their employer; or
  • $20.00 for employees who do not also receive health benefits through their employer.

Employers that pay the lower, $15.00 per hour rate, are not required to shoulder the entire cost of the employee's "health benefits." Rather, the employer meets the requirement of providing health benefits by paying $5.00 per hour toward the provision of health care benefits for the employee and the employee's dependents.

Protection from Assault and Other Threatening Behavior

Hotel Employers must provide a "Panic Button" to all Hotel Employees assigned to work in a guest room or bathroom without other employees present. The ordinance defines Panic Button as "an emergency contact device carried by the hotel employee" which allows the employee to summon assistance in the event the employee encounters "crime, threat, or other emergency."

Hotel Employers are prohibited from disciplining an employee for using a panic button, except where the employer has "clear and convincing" evidence that the employee knowingly and intentionally made a false report of an emergency.

Employees who report "violence or threatening behavior, including ... indecent exposure" have the following additional rights:

  • If the employee has reasonable fear for his or her safety, the employer must reassign the employee to a different floor or different area away from the person who is alleged to have engaged in the improper conduct.
  • The employer must allow the employee paid time to contact the police and make a statement and to consult with a "counselor or advisor" of the employee's choice.
  • The employer cannot require the employee to make a statement to the police.
  • The employer must cooperate with any investigation of the incident by law enforcement or "any attorney for the complaining ... employee."

Hotel Employers must place a sign on the back of each guest room door, written in at least 18-point font, that includes:

  • The heading "The Law Protects Hotel Housekeepers and Employees From Threatening Behavior."
  • A citation to Chapter 5.93 of the Oakland Municipal Code.
  • A notice that the hotel provides panic buttons to its housekeepers, room servers, and other hotel employees assigned to work in guest rooms without other employees present.

"Humane" Workload

The measure creates several restrictions on the hours, amount of work, and type of work a Hotel Employer can require of certain employees.

Hotel Employers are prohibited from allowing employees to work more than 10 hours per day, unless the employees give voluntary "informed consent" to work additional hours. In order for "informed consent" to be valid, it must meet the following requirements:

  • Be in writing, signed by the employee, or "communicated electronically through an account or number particular to the hotel employee."
  • The employer must have informed the hotel employee, within the previous 30 days and also in writing, (a) that the employee may decline to work more than 10 hours in any workday; and (b) that the employer will not subject the hotel employee to any adverse action for declining.
  • Be provided in each language spoken by more than 10% or 10 hotel employees at the hotel, whichever is less.

The ordinance provides an exception to the above requirements for emergency situations involving "an immediate threat to public safety" or "substantial risk of property loss or destruction."

Hotel Employers cannot require a room cleaner to clean more than 4,000 square feet of floor space in an eight-hour period unless the employee is paid double his/her regular rate for all hours worked during that day. If a room cleaner works less than eight hours in a work day, then the amount of square feet is proportionally reduced. For example, an employee working a six-hour shift cannot be required to clean more than 3,000 square feet. If a room cleaner is required to clean more than six checkout rooms, the maximum square footage is reduced by 500 square feet for each additional room. For example, an employee cleaning nine rooms in an eight-hour shift cannot be required to clean more than 2,500 square feet.

Preservation of Records

Employers subject to the above provisions must keep records of compliance for at least three years. The records must include the following:

  • For room cleaners, a daily record of each employee's name, rate of pay, number of rooms cleaned per day, and square footage cleaned per day;
  • For all employees working more than 10 hours during a work day, records showing the required notices were given and informed consents obtained.
  • For all employees, a record of each employee's name, hours worked, rate of pay, and proof that the employer complied with the "health benefits" requirements.

Employers are required to produce the above records for inspection and copying by "hotel employees or their representatives" for inspection and copying. When any employee or representative is requesting information regarding other employees, the employer must redact the other employees' names, addresses, and social security numbers from the copies that are produced.

Where the employer fails to maintain or to produce the records required, the employer is presumed to have violated the corresponding requirements.

Retaliation

The measure contains a particularly broad anti-retaliation provision. Employers are prohibited from retaliating against employees who assert their rights under these ordinances. In addition, an employer cannot discharge an employee within 120 days of being notified the employee engaged in any such activity, unless the employer has "clear and convincing evidence of just cause for such discharge." This provision may become a de facto requirement of "just cause" for any termination of any employee who regularly asserts their rights under these ordinances.

Notice of Rights

Hotel Employers must give written notification to all current employees of their rights under Chapter 5.93. The notification must be provided in each language spoken by more than 10% or 10 hotel employees at the hotel, whichever is less. Employers must give newly hired employees the same notification at the time of hire.

Joint Liability

Employers that contract with staffing agencies and other employers for the services of hotel employees share all civil liability for violations affecting the employees working under the contract.

Administrative Enforcement by the City

The measure amends Oakland Municipal Code section 5.92.050 to authorize the city to investigate violations of any employment standards within the Code. Alleged violators are entitled to "a hearing that affords ... due process." (The measure does not contain any provision specifically delineating any hearing procedure.) Once given a hearing, the alleged violator is subject to the City's determination of whether a violation occurred. The City may then order "appropriate relief," including reinstatement, back pay, and civil penalties (payable to the employees) of $50 per employee per day. The City may also order the employer to pay the City $50 for each day and for each employee the violation occurred. The funds paid to the City shall be used to offset the cost of enforcing the ordinances.

Administrative Enforcement by Others

The measure authorizes private employees and employee organizations (e.g., labor unions) to sue employers in civil court for violations of any City employment standard. The suing party may recover back pay, reinstatement, and injunctive relief, as well as a civil penalty of $50 for each day and for each employee the violation occurred, up to a maximum of $1,000 per employee.

Department of Workplace and Employment Standards

The ordinance provides for the creation of the Department of Workplace and Employment Standards. Effective July 1, 2020, the DWES shall enforce all City employment standards and shall have the full authority of the City to impose penalties, adopt rules and regulations consistent with the employment standards, and to enforce provisions of the California Labor Code "to the extent permitted by law."

Regulations

The measure gives the City and the DWES authority to create and enforce "rules and regulations" and to issue "determinations and interpretations" which will, themselves, have the force of law. So far, there has been no indication of what additional "rules and regulations" will extrapolate from the measure.

Consequences for Employers

Measure Z will certainly have consequences for employers operating within the City of Oakland. The full extent of those consequences will depend on whether the new ordinances survive potential future legal challenges on constitutional and other grounds.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Patrick C. Stokes
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions