Federal Judge Denies Grocers’ Bid to Block Hazard Pay For Workers

An ordinance approved by the Long Beach, California, City Council provides an extra $4 an hour in premium pay for grocery store workers who face greater health risks in the Covid-19 pandemic.

Image by mohamed Hassan from Pixabay

LOS ANGELES (CN) — A federal judge denied a bid by the California Grocers Association to block a city of Long Beach ordinance providing a $4 an hour boost in hazard pay for grocery workers, finding there’s no evidence the policy is preempted by federal labor law. 

The Southern California city requires grocery stores to pay the extra $4 per hour for at least 120 days to workers who face “magnified risks of catching or spreading the Covid-19 disease because the nature of their work involves close contact with the public,” according to text of the ordinance approved Jan. 19.

The ordinance was contemplated as a measure acknowledging grocery workers’ contributions and one that would encourage or ensure employee retention in supermarkets that provide critical supplies for the public, attorneys for the city said in court papers.

CGA, which represents 6,000 grocery stores across California, sued Long Beach in federal court, claiming its member grocery stores operate on thin profit margins and that some have already given their workers hazard pay bonuses. 

Attorneys for CGA argued the ordinance was preempted by the National Labor Relations Act because it interferes with labor negotiations by mandating premium pay only for union-eligible grocery workers.

To support CGA’s preemption claims, their attorneys cited the U.S. Supreme Court’s 1976 ruling in Machinists v. Wisconsin Employment Relations Comm, which held workers’ “self-help” tools such as strikes or lock-outs are tactical decisions that should “be controlled by the free play of economic forces” and not regulated by Congress. 

In court papers opposing an injunction, attorneys for Long Beach said the ordinance doesn’t prevent stores from firing workers or reducing hours and that it’s a “labor standard benefiting union and non-union grocery workers.”

In a 17-page ruling denying CGA’s preliminary injunction request, U.S. District Judge Otis D. Wright II found the preemption claim is likely to fail because the labor relations act provides for equitable bargaining, not special carveouts for terms that emerge from it.

“If the drafters of the ordinance meant to prohibit employers from offsetting labor costs by lowering any form of compensation ‘in any way’ as CGA suggests, they could have said so in the ordinance. They did not,” Wright wrote in the order. “Even if the ordinance does mean something beyond what it says, CGA simply has not shown a likelihood that this is so.”

Wright also considered whether CGA is likely to succeed on its claims that the ordinance violates the Equal Protection Clauses of the U.S. and California constitutions.

Laws alleged to violate the clause are generally reviewed by courts under one of three levels of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review.

In a virtual hearing Tuesday, Tarantino argued the ordinance would fail under both strict scrutiny and rational basis tests.

Wright disagreed, finding he need not analyze the ordinance under strict scrutiny because regulating wages and employment conditions lies within the city’s power.

Wright declined to rule on whether the ordinance violates the contract clause of the U.S. Constitution but wrote that the court doesn’t need to apply strict scrutiny simply because the Constitution contains the clause.

Attorneys for CGA argued the ordinance fails rational basis review because the city unfairly targeted grocery stores that were struggling financially and where data allegedly showed only a mildly elevated mortality risk compared to other workplaces.

Wright found this CGA argument is also likely to fail. 

“This is not convincing either, as a mildly elevated mortality risk is still an elevated mortality risk, and the city could have rationally decided to compensate grocery workers for taking on such risk by showing up for work,” Wright wrote. “Moreover, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.”

In a statement, a representative for the city of Long Beach said it was pleased with the ruling.

“The ordinance is allowed to remain in place and will ensure that grocery store workers receive fair compensation for the risks they face providing essential services during the Covid-19 pandemic,” the statement said.

Ron Fong, president & CEO of the CGA, said his group was disappointed by the ruling but attempted to see the silver lining.

“The court noted several potentially problematic aspects of the Long Beach ordinance and stated that its decision was limited. We remain confident that these extra pay ordinances will not withstand legal scrutiny,” Fong said in a statement. “We intend to appeal this ruling on the preliminary injunction and look forward to presenting our arguments to the Ninth Circuit in the coming weeks.”

Fong also noted Judge Wright found the hazard pay mandate “will not make grocery store workers any safer” and “‘does not protect or promote public health.'”

John Gomez, a California grocery store worker, responded to the ruling Thursday in a statement shared by United Food and Commercial Workers Western States Council, a union representing grocery workers.

“Grocery workers have worked for almost a year under the daily stress that they could get sick and bring home the virus to their families, maybe even causing a loved ones’ death,” Gomez said. “But today’s ruling, and the fact that four more cities have joined our movement, fills me with hope for the future. Frontline essential workers like me and my co-workers have sacrificed so much to keep the economy running and we deserve to be compensated.”

The ruling comes as five other California cities and counties — Los Angeles and San Mateo Counties and the cities of LA, Berkeley and Buena Park — voted for or provisionally approved mandated temporary hazard pay for workers.

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