Laserfiche WebLink
MORRISON I FOERSTER <br />These ordinances choose winners and losers among frontline workers in mandating wage <br />increases. Other retail and health care workers are ignored, despite the fact that those same <br />workers have been reporting to work since March. <br />Hazard nay ordinances are unconstitutional. By mandating hazard pay, the City would <br />improperly insert itself into the middle of the collective bargaining process protected by the <br />National Labor Relations Act. Grocers have continued to operate, providing food and <br />household items to protect public health and safety. In light of the widespread decrease in <br />economic activity, there is also no reason to believe that grocery workers are at any particular <br />risk of leaving their jobs, but even if there were such a risk, grocers would have every <br />incentive to increase the workers' compensation or otherwise bargain with them to improve <br />retention. A hazard pay ordinance would interfere with this process, which Congress <br />intended to be left to be controlled by the free -play of economic forces. Machinists v. <br />Wisconsin Employment Relations Comm'n, 427 U.S. 132 (1976). <br />For example, in Chamber of Commerce of U.S. v. Bragdon, the Ninth Circuit Court of <br />Appeals held as preempted an ordinance mandating employers to pay a predetermined wage <br />scale to employees on certain private industrial construction projects. 64 F.3d 497 (9th Cir. <br />1995). The ordinance's purported goals included "promot[ing] safety and higher quality of <br />construction in large industrial projects" and "maintain[ing] and improv[ing] the standard of <br />living of construction workers, and thereby improv[ing] the economy as a whole." Id. at <br />503. The Ninth Circuit recognized that this ordinance "differ[ed] from the [a locality's] <br />usual exercise of police power, which normally seeks to assure that a minimum wage is paid <br />to all employees within the county to avoid unduly imposing on public services such as <br />welfare or health services." Id. at 503. Instead, the ordinance was an "economic weapon" <br />meant to influence the terms of the employers' and their workers' contract. Id. at 501-04. <br />The Ninth Circuit explained that the ordinance would "redirect efforts of employees not to <br />bargain with employers, but instead, to seek to set specialized minimum wage and benefit <br />packages with political bodies," thereby substituting a "free -play of economic forces that was <br />intended by the NLRA" with a "free -play of political forces." Id. at 504. <br />While the City has the power to enact ordinances to further the health and safety of its <br />citizens, it is prohibited from interfering directly in employers' and their employees' <br />bargaining process by arbitrarily forcing grocers to provide wages that are unrelated to <br />minimum labor standards, or the health and safety of the workers and the general public. <br />While minimum labor standards that provide a mere backdrop for collective bargaining are <br />consistent with the NLRA, local laws such as a hazard pay ordinance, which effectively <br />dictate the outcome of the college bargaining process, are preempted. An ordinance such as <br />the one proposed here imposes unusually strict terms on a narrow band of businesses without <br />any allowance for further bargaining. By enacting an ordinance such as this, the City would <br />end any negotiations by rewriting contracts. <br />Hazard pay ordinances also violate the U.S. Constitution and California Constitution's Equal <br />Protection Clauses (the "Equal Protection Clauses"). The Equal Protection Clauses provide <br />sf-4441468 <br />