248 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 7.17 Hazard Pay During the Covid-19 pandemic, California grocery, drug store, and other front-line workers sold essential products, stocked shelves, cleaned buildings, and otherwise kept the economy moving. Dozens of California cities and counties took action—often in haphazard ways—to provide these workers with premium pay, commonly called “hazard pay” or “hero pay.” But no politicians asked taxpayers to fund this effort. Rather, local governments imposed a mandate on local businesses to pay workers—sometimes immediately and sometimes even retroactively—hourly wage hikes of $3, $4, or $5. The State of California, meanwhile, took no supervisory role, declining to preempt these local initiatives that confronted larger employers with a patchwork of inconsistent obligations. The California Grocers Association launched legal challenges to the hazard pay ordinances, arguing that they violated the affected employers’ right to equal protection and that they were preempted by the National Labor Relations Act. By mid-2021, dozens of local jurisdictions had adopted hazard pay ordinances, requiring additional wages ranging from $3 to $5. These ordinances have now expired, as has the California State Covid-19 Supplemental Paid Sick Leave law, which expired on December 31, 2022. These local efforts began in January 2021 and then spread across the state like a coronavirus. They all addressed the scope of coverage (which employers and employees are covered), the amount of required hazard pay, and the duration of the ordinance. Many also addressed additional topics such as prohibiting retaliation, providing credits for employer-initiated hazard pay, requiring posted notice of the ordinance at the workplace, and requiring record-keeping standards. And some, of course (this being litigation-friendly California), created private rights of action against non-complying employers. Although the hazard pay ordinances have expired, employers should be aware of potential claims by employees stemming from alleged failures by employers to provide hazard pay. Employers should refer to the statute of limitations for the relevant law or ordinance if presented with such a claim. The City of Los Angeles’s Premium Hazard Pay for On-Site Grocery and Drug Retail Workers Ordinance served as a template for other local jurisdictions. The Los Angeles ordinance included these key terms: Premium pay was extra. The pay was in addition to all other forms of compensation and reimbursement. Employer. A Los Angeles covered “employer” was (1) a grocery, drug, or retail store with (2) more than 300 employees nationwide and more than 10 employees on site within the jurisdiction at a store that (3) either (a) primarily sold grocery items (including both food and household goods) or (b) sold various prescription and nonprescription medicines, along with other sundries or (c) was a retail store with over 85,000 square feet of retail space, 10% of which was dedicated to either groceries or drug retail. Employee. A Los Angeles covered “employee” was any individual who, during a particular week (1) performed at least two hours of work for a covered employer within the city and (2) is entitled to the California minimum wage. Depending on the ordinance, salaried managers may or may not have earned hazard pay. So while Los Angeles exempted managers and Daly City exempted managers, supervisors, and confidential labor relations employees, San Francisco provided both hourly and salaried employees to hazard pay to the extent that they earned less than $35 per hour (whether paid hourly or by an equivalent salary, based on a 40-hour workweek).
RkJQdWJsaXNoZXIy OTkwMTQ4