On February 16, 2021, the City Council of West Hollywood, California, passed an urgency ordinance establishing premium pay for grocery workers during the COVID-19 pandemic. West Hollywood is located in central Los Angeles County, northwest of downtown Los Angeles. The ordinance requires that large grocery stores in West Hollywood provide their workers with premium pay of $5.00 for each hour worked. The ordinance took effect immediately and will expire 120 days from its effective date.

Covered Employers

The ordinance defines covered employers as grocery store “hiring entities” that employ more than 300 grocery workers nationally and more than 15 employees per grocery store in the City of West Hollywood. The ordinance defines “grocery store[s]” as stores that devote 70 percent or more of their business to retailing fresh and/or packaged food products.

Covered Employees

The ordinance applies to workers who are “employed directly by a hiring entity at a grocery store.” The ordinance excludes managers, supervisors, and confidential employees.

Worker Protections

The ordinance prohibits an employer from reducing a grocery worker’s compensation or limiting a grocery worker’s earning capacity as a result of the ordinance’s going into effect. If an employer reduces a grocery worker’s compensation or limits an employee’s earning capacity (such as by moving the employee to a part-time position), the employer must demonstrate that it would have taken the same action had the West Hollywood City Council never passed the ordinance. The ordinance also prohibits employer retaliation against grocery workers who exercise their rights under the ordinance.

Posted Notice

The ordinance requires that employers notify covered grocery workers in writing about their rights. The notice must include information regarding (a) the right to premium pay guaranteed by the ordinance; (b) the right to be protected from retaliation; and (c) the right to bring a civil action for an employer’s violation of the ordinance. Employers must post the required notice in a location that employees use for breaks, as well as in an electronic format accessible to the grocery workers via a smartphone application or an online web portal. An employer must provide the notice in both English and any language that the employer knows is the grocery workers’ primary language.

Records Retention

Employers must keep records demonstrating compliance with the ordinance for at least two years. An employer’s failure to do so will result in a rebuttable presumption that the employer violated the ordinance.

Collective Bargaining Agreements

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

Enforcement

The ordinance creates a private right of action for covered grocery workers who suffer either financial injury or retaliation because of violations of the ordinance. The ordinance also authorizes attorneys’ fees and costs for employees who successfully pursue such civil actions.

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.