[Ord. #2010-07, § 1]
The purpose of this section is to assure that employees of City
service contractors and subcontractors, and employees and contractors
of City financial assistance earn an hourly wage that is sufficient
to live with dignity and to achieve economic self-sufficiency. The
City contracts with many businesses and organizations to provide services
to the public, and provides financial assistance to developers and
businesses for the purpose of promoting economic development and job
growth. Such public expenditures should also be spent to set a community
economic standard that permits workers to live out of poverty. The
City Council finds that the use of City funds to provide living wage
jobs will decrease poverty, increase consumer income, invigorate neighborhood
businesses and reduce the need for taxpayer funded social service
programs.
This section shall be known and may be cited as the "Living
Wage Ordinance." The purpose of this section is to protect the public
health, safety and welfare. It does this by requiring that public
funds be expended in such a manner as to facilitate individual self-reliance
by employees of City contractors, lessees, recipients of City financial
aid and their respective subcontractors.
[Ord. #2010-07, § 1]
a.
The City of Albany awards contracts to private firms and other businesses
to provide services to the public and to City government; and
b.
The City of Albany has a limited amount of taxpayer resources to
expend; and
c.
The use of taxpayer dollars to promote sustenance and creation of
living wage jobs will increase consumer income, decrease levels of
poverty and reduce the need for taxpayer funded social programs in
other areas; and
d.
When City funds are used to contract for services, such contracts
should demonstrate an effort to promote an employment environment
that enhances the general quality of life within the community and
maximizes the productive effect of the City's limited resources; and
e.
The City's use of contractors that do not provide health insurance
to their employees can result in imposing the costs of their medical
care on the County, State and Federal governments; and
f.
That employees are far likelier to be healthy if their employer provides
reasonable health insurance to them and their dependents; and
g.
The payment of a minimum level of compensation as required by this
section benefits these interests.
[Ord. #2010-07, § 1]
The following words and phrases whenever used in this section
shall be construed as defined in this section:
Shall mean the City of Albany and all City departments and
agencies, including but not limited to the Albany Community Reinvestment
Agency and the Albany Public Facilities Financing Authority.
Shall mean all persons or entities that receive from the
City direct assistance in the form of grants, loans, or loan guarantees,
in-kind services, waivers of City fees, real property or other valuable
consideration in the amount of more than $100,000 within the City's
fiscal year (July 1st through June 30th). This term shall not include
those who enjoy an economic benefit as an incidental effect of City
policies, regulations or ordinances.
Shall mean any person or entity that enters into a service
contract as hereafter defined with the City in an amount equal to
or greater than twenty-five thousand ($25,000.00) dollars within the
City's fiscal year. (Contractor includes subcontractors whose employees
are engaged in City funded services.)
Shall mean any individual employed by an employer who performs
at least twenty-five (25%) percent of the work arising from a service
contract, City financial aid, or City lease. No work may be reassigned
in order to evade coverage under this section.
Shall mean an employer's monetary contribution toward the
cost of health and medical care insurance for covered employees and
their dependents. Health benefits may include the following types
of insurance: medical health, including mental health, dental and
vision care. The hourly cost of providing health benefits shall be
credited as compensation along with wages under this section. Retirement
benefits, accidental death and dismemberment insurance, life insurance,
disability insurance and other benefits that do not provide medical
or health-related coverage shall not be credited as compensation.
Shall mean a nonprofit organization described in Section
501(c) of the Internal Revenue Code of 1954 which is exempt from taxation
under Section 501(c) of that code, or any nonprofit educational organization
qualified under Section 23701(d) of the Revenue and Taxation Code.
Shall mean any individual, proprietorship, partnership, joint
venture, corporation, limited liability company, trust, association,
or other entity that may employ individuals or enter into contracts.
Shall mean a contract given a contractor by the City for
twenty-five thousand ($25,000.00) dollars or more for the furnishing
of services to or for the City, except those contracts where services
are incidental to the delivery of products, equipment or commodities.
Service contracts include but are not limited to security guard services,
janitorial services, waste management, landscaping, parking attendant
services, and towing. "Service contract" does not include: (1) a contract
between the City and another governmental entity or public utility;
(2) a contract wherein prevailing wage as defined by Division 2, Part
7, of the California Labor Code applies so long as prevailing wage
is greater than the living wage requirement; and (3) a contract subject
to federal or state laws or regulations that would preclude application
of the living wage requirement otherwise applicable pursuant to this
chapter.
[Ord. #2010-07, § 1]
The persons and entities described below shall comply with the
minimum compensation standards established by this section if they
employ more than ten (10) employees:
a.
For-profit service contractors which have at least ten (10) employees
working a minimum of twenty (20) hours per week and receive contract(s)
from the City for twenty-five thousand ($25,000.00) dollars or more
within the City's fiscal year. Compliance shall be required during
the term of the contract for all employees who perform at least twenty-five
(25%) percent of the work arising from the service contract.
b.
Nonprofit service contractors which have at least ten (10) employees
working a minimum of twenty (20) hours per week and receive contracts
from the City of one hundred thousand ($100,000.00) dollars or more
within the City's fiscal year. Compliance shall be required during
the term of the contract for all employees who perform at least twenty-five
(25%) percent of the work arising from the service contract.
c.
Lessees of public property, licensees, concessionaires and franchisees
which employ twenty-five (25) or more employees and have three hundred
fifty thousand ($350,000.00) dollars or more in annual gross receipts.
Compliance shall be required during the lease term for any employees
who spend twenty-five (25%) percent or more of their compensated time
on the leased property or engage in work directly related to the license,
concession or franchise.
d.
City financial aid recipients that receive more than one hundred
thousand ($100,000.00) dollars in loans or other cash and/or non-cash
assistance within the City's fiscal year. Compliance shall be required
for a duration of one (1) year for each one hundred thousand ($100,000.00)
dollars of assistance, up to a maximum duration of five (5) years,
following receipt of the aid for all employees who spend twenty-five
(25%) percent or more of their compensated time engaged in work directly
related to the purposes for which the City provided the aid.
e.
Subcontractors and sublessees of any of the entities or persons described
in paragraphs a through d above.
[Ord. #2010-07, § 1]
All persons and entities subject to this section shall pay covered
employees a wage of no less than the living wage set forth in this
section:
a.
Living wage means no less than eleven dollars and ninety-three ($11.93)
cents per hour including wages and health benefits paid by the employer
and thirteen dollars and fifty-four ($13.54) cents per hour with no
health benefits. If employer contributions for health benefits are
not paid on an hourly basis, the employer must demonstrate to the
City the hourly value of such benefits in order to receive credit
for such payments to covered employees.
b.
Additional Compensation Permissible. Nothing in this section shall
be construed to limit an employer's discretion to provide greater
wages to its employees.
c.
The initial rates set forth in paragraph a of this subsection shall
adjust annually on July 1st, to reflect the 12-month average in the
Consumer Price Index for all urban consumers in the San Francisco-Oakland-San
Jose Metropolitan Statistical Areas for the preceding year from May
through April, not to exceed three (3%) percent in any one (1) year.
d.
If the prevailing wage for services occupations is posted by the
State Department of Industrial Relations (or any successor agency)
and exceeds the compensation required by the living wage, then the
contractor is required to pay its employees the posted prevailing
wage.
[Ord. #2010-07, § 1]
Following a review and recommendation by the City Manager, the
City Council may approve waivers with or without conditions to any
of the requirements and regulations set forth in this section, or
in any implementing policies, upon the following findings:
a.
The services to be provided are available from a single source and
that source has significant barriers to meeting the requirements of
the section; or
b.
A waiver is necessary to provide emergency services essential to
mitigate or prevent possible threats to public safety or public health
for a limited period of time; or
c.
All bidders for the service to be provided have significant barriers
to meeting the requirements of the section; or
d.
Any other circumstances that the City Council finds to be in the
public interest.
e.
All of the provisions of this section, or any part hereof, may be
waived by a bona fide collective bargaining agreement, but only if
the waiver is explicitly set forth in such agreement in clear and
unambiguous terms.
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This notification shall be in the form provided by the City
and translated by the employer to other languages spoken by a significant
number of employees and shall also be posted prominently in areas
at the worksite where it will be seen by all employees.
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[Ord. #2010-07, § 1]
Every City contract, lease, license, concession agreement, franchise
agreement or agreement for financial aid with an employer shall require
compliance with the requirements of this section. Such contract provisions
shall address the employer's duty to promptly provide to the City
documents and information verifying compliance with the requirements
of this section, and sanctions for noncompliance. Such contract provisions
shall also require the employer to notify each of its affected employees
with regards to wages that are required to be paid pursuant to this
section.
[Ord. #2010-07, § 1]
The requirements of this section shall not be applicable to
the following employees:
a.
Employees of another government agency, including without limitation,
cities counties, state agencies, and public utilities.
b.
An employee participating in a temporary job training program approved
by the City in which a significant component of the employee's training
consists of acquiring specialized knowledge, abilities, skills or
job readiness (e.g., the importance of proper work attire, punctuality
and workplace demeanor).
c.
An employee who is in an internship or other job training program
for which the employee is also receiving academic credit.
d.
An employee who is under eighteen (18) years of age.
e.
An employee of the City of Albany who is employed for a limited term
to a regular or non-regular position including casual, seasonal and
emergency appointments with no guarantee of continued employment beyond
the initial hire season.
f.
Volunteers.
g.
Owners of a business who are also employees of the business and their
immediate family members (spouse, domestic partner, parent, siblings
and children).
h.
Employees who are standing by or on-call according to the criteria
established by the Fair Labor Standards Act, 29 U.S.C. § 201.
This exemption shall apply only during the time when the employee
is actually standing by or on-call.
i.
Employees of contractors and subcontractors subject to the requirements
of Division 2, Part 7, of the California Labor Code, for payment of
prevailing wage when prevailing wage requires compensation greater
than that required by this section.
j.
An employee for whom application of the requirements of this section
is prohibited by state or federal law.
k.
An employee subject to a bona fide collective bargaining agreement
where the waiver of the provisions of this section are set forth in
clear and unambiguous terms in such an agreement.
[Ord. #2010-07, § 1]
a.
It shall be unlawful to retaliate or discriminate against any person
on account of having claimed a violation of this section.
b.
Each entity which is to replace a prior entity, subject to the requirements
of this section shall offer employment to the employees of the prior
entity. Such employees may not be terminated by the new entity during
the first ninety (90) days except for just cause. The new entity may
operate at lower staffing levels than its predecessor but in such
event shall place its predecessor's employees on a preferential reinstatement
list based on seniority. For purposes of this section, an entity "replaces"
another if it (1) assumes all or part of the lease, contract, subcontract
or City aid of a prior employer, and (2) offers employment which employees
of the prior entity can perform. Nothing herein shall be construed
to require that supervisory, managerial or confidential employees
retained by the new contractor be kept in a supervisory, managerial
or confidential position.
[Ord. #2010-07, § 1]
a.
An employee who alleges violation of any provision of the requirements
of this section may report such acts to the City. The City Manager
may establish a procedure for receiving and investigating such complaints
and take appropriate enforcement action.
b.
Any complaints received shall be treated as confidential matters
to the extent permitted by law. Any complaints received and all investigation
documents related thereto shall be deemed exempt from disclosure pursuant
to California Government Code Sections 6254 and 6255.
[Ord. #2010-07, § 1]
a.
A person claiming violation of this section may bring an action in
the Superior Court of the State of California against an employer
and obtain the following remedies:
1.
Back pay for each day during which the employer failed to pay the
compensation required by this section.
2.
Reinstatement and compensatory damages.
3.
For a willful violation of this section, a court may award as a penalty
up to treble the amount of monies to be paid as damages.
4.
Reasonable attorney's fees and costs.
b.
Notwithstanding any provision of this section or any other ordinances
to the contrary, no criminal penalties shall attach for any violation
of this section.
c.
No remedy set forth in this section is intended to be exclusive or
a prerequisite for asserting a claim for relief to enforce any rights
hereunder in a court of law.
d.
No Liability of City. Claims or lawsuits against the City arising
under this section are not authorized, nor shall the remedies provided
in paragraph a be awarded against the City. The City shall not be
liable to any person or entity because of the City's failure to notify
an employer of the applicability of this section, the City's failure
to investigate or enforce violations of this section, or based upon
another employer's failure to comply with this section.
e.
The City may terminate a service contract, financial assistance,
or lease or facility agreement and pursue any other legal remedies
available to the City, including debarment, for noncompliance with
this section.
[Ord. #2010-07, § 1]
The City Manager, or his/her designee, shall have the authority
to implement this section and may promulgate administrative guidelines,
regulations, and procedures consistent with the purpose and intent
of this section.
[Ord. #2010-07, § 1]
This section shall apply to every City contract, lease, license,
concession agreement, franchise agreement or agreement for financial
aid with an employer entered into or amended on or after January 1,
2011.
