On March 1, 2021, the City Council of Pomona, California, passed an ordinance that establishes premium pay for retail food workers during the COVID-19 pandemic. Pomona is an incorporated city located in Los Angeles County and is not subject to the county's hero pay ordinance. The new Pomona ordinance requires large retail establishments to provide their workers with premium pay of $4.00 for each hour worked. The city also published a "Hero Pay" Ordinance Fact Sheet. The ordinance took effect immediately and will remain in effect at least until June 29, 2021.
The ordinance defines covered employers as "retail establishments" that employ 300 or more employees nationwide and employ more than 10 employees per location in Pomona. The fact sheet similarly identifies covered employers as "any grocery store, retail pharmacy or 'big box retailer' who employs 300 or more employees nationally and employs more than 10 employees per location in the City." (Emphasis in original).
The ordinance defines retail establishment as "a retail establishment located in the City of Pomona that:
(A) [is] more than 15,000 square feet and (i) devotes seventy percent (70%) or more of its sales floor area to retailing a general range of food products, which may be fresh or packaged, or (ii) receives seventy percent (70%) or more revenue from retailing a general range of food products;
(B) [has] greater than 50,000 square feet of gross buildable area that will generate sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law (Part 1.5 (commencing with Section 7200 ) of Division 2 of the Revenue and Taxation Code);
(C) is more than 50,000 square feet and devotes 10% or more of its sales floor area to the sale of merchandise that is non-taxable pursuant to Section 6359 of the Revenue and Taxation Code, including retail establishments with multiple tenants, so long as consumer goods and nontaxable items are sold under the same roof with shared checkout stands, entrances, and exits; or
(D) is [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."
Covered Retail Employees
The ordinance applies to individuals employed directly by a retail establishment and performing work in Pomona. Unlike other California hero pay ordinances, the Pomona ordinance does not expressly exclude managers, supervisors, or confidential employees. The fact sheet specifically states that "[a]ny employee who works for an employer that falls into the requirements of the 'Hero Pay' ordinance qualifies for the premium pay of an additional $4.00 per hour." (Emphasis added).
The ordinance prohibits covered employers from "discharg[ing], reduc[ing] in compensation, or otherwise discriminat[ing] against any covered retail employee for opposing any practice proscribed by [the] Ordinance, for participating in proceedings related to [the] Ordinance, for seeking to exercise their rights under [the] Ordinance by any lawful means, or for otherwise asserting rights under [the] Ordinance." Similarly, the ordinance prohibits employers from "[l]imit[ing] a covered retail employee's earning capacity" because of the ordinance.
The ordinance requires that covered employers provide employees with a written notice of their rights under the ordinance. According to the ordinance, employers must include the following information in the written notice: covered employees' right to premium pay; the right to be protected from retaliation for exercising their rights in good faith; and the right to bring a civil action for any violation of the ordinance. Employers must post the notice in a location utilized by employees for breaks as well as in an electronic format (online web portal or smartphone application) that is readily accessible to employees. Employers must provide the notice "in English and any language that the [employer] knows or has reason to know is the primary language of [its] employee(s)."
Under the ordinance, employers must keep records demonstrating compliance for two years. If the employer fails to maintain such records, the city will presume that the employer "violated [the] Ordinance for each covered retail employee for whom records were not retained" absent "clear and convincing evidence" otherwise.
Collective Bargaining Agreements
Collective bargaining agreements can waive the ordinance's application, but only if the agreements "explicitly set forth [the waiver] in clear and unambiguous terms."
Under the ordinance, the city may enforce compliance through administrative action. The ordinance also creates a private right of action for covered workers who suffer either financial injury or retaliation as a result of their employer's violation of the ordinance. The ordinance authorizes damages for lost wages plus interest, liquidated damages (up to twice the amount of unpaid compensation), civil penalties, and attorneys' fees and costs for employees who successfully pursue a civil action.
Duration of Hazard Pay
The ordinance is in effect until June 29, 2021, unless the city council extends the ordinance.
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.
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