SR-703-003 (6)f:\atty\mu ni\strpts\mjm\noretal.wpd
City Council Meeting 5-2-00
Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Amending Ordinance Number 1970 (CCS) to Specify the Order
of Proof in Civil Cases and to Strengthen Available Remedies in Actions
Brought Against Employers Who Retaliate Against Employees for
Minimum Wage and Benefit Advocacy
Intrnr~i irtinn
At its meeting of April 11, 2000, the Santa Monica City Council adopted an emergency
ordinance prohibiting employers from retaliating against employees who advocate for or
against a minimum wage and benefit law. The Council also directed staff to return
with amendments which would strengthen the ordinance, including an amendment
relating to proof requirements. This Staff Report and the attached proposed ordinance
respond to that directive.
Backqround
At the hearing on April 11, 2000, speakers expressed the viewpoint that the ordinance
prohibiting retaliation should be strengthened by adding a provision relating to burden of
proof which would make it easier for aggrieved employees to establish civil liability. It
was also suggested that incentives for civil enforcement should be strengthened.
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Laws prohibiting various forms of unlawful discrimination and cases explaining those
laws often specify the parties' proof responsibilities. Typically, the plaintiff is initially
required to make a minimal showing of basic facts which might indicate discrimination.
Once that threshold showing has been made, the responsibility of going forward shifts
to the employer to provide a legitimate, nondiscriminatory reason for the action. If the
employer fulfills that requirement, then the plaintiff would have to show that the
supposedly legitimate reason was a pretext.
Discussion
The attached ordinance would amend the City's existing law by adding a subsection on
proof requirements similar to those contained in many antidiscrimination laws.
Pursuant to this provision, an aggrieved employee's initial burden would be only to
show that he or she was defendant's employee, that he or she advocated for or
against the living wage, and that he or she was thereafter discharged, demoted or
otherwise penalized by the employer. With that proof complete, responsibility for
going forward would shirt to the employer to show that the discharge, demotion or
penalty was not motivated by the advocacy but was, instead, based on a legitimate
reason. If the employer fulfills that obligation, then the employee would have to show
that the alleged, legitimate reason was actually a pretext.
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In addition to addressing proof requirements, the proposed ordinance would also
strengthen the available remedies by providing for awards of forward pay, lost benefits,
and a statutory penalty of $500.00 in addition to compensatory damages.
At the Council meeting of April 11, 2000, City staff explained that there are both federal
and state laws which protect workers' right to advocate for better pay and benefits.
Given this fact, it is possible that a defendant in an action brought pursuant to our local
law could claim federal preemption. In response, it could be argued that the federal
and state laws address slightly different situations than individual advocacy for or
against a new law.
At the Council meeting on April 11, 2000, there was also some discussion as to whether
or not the United States and California actively enforce the federal and state laws.
After that meeting, a representative of the California Attorney General's Office
contacted the City and explained that the Attorney General's Office is evaluating
possibilities for enforcement of the state Labor Code.
Financial/Budqet Impact
There would be no budget or financial impact if the attached ordinance is adopted.
Recommendation
It is respectfully recommended that the attached ordinance be adopted.
PREPARED BY: Marsha Jones Moutrie, City Attorney
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